Jackson & Carter presented a seminar on "Legal Hot Topics" at the 2018 Texas Hospital Association Convention on February 6 in Houston. Individual issues addressed included "Guns in Hospitals", "Telemedicine Guidelines", and the "340B Drug Program". Thanks to our friends for attending - our session overflowed and more chairs were brought in to the extent possible to accommodate the crowd! Please contact us if you need any details on these issues.
2017 was a great year at Jackson & Carter. We are thankful for our clients and the opportunity to advocate for them as they continue to make Texas a healthier place for its citizens.
January of 2017 was busy for both Brian and Craig. Brian spent many days at the State Capital as several health care bills were on the front burner at the Texas Legislature. Our firm proudly serves as General Counsel for the Texas Alliance for Patient Access (TAPA). TAPA works relentlessly to preserve the Tort Reforms which have fueled the expansion of medical services in Texas. TAPA’s focus in January was to file a bill that created a more effective and user friendly medical authorization. Brian testified as an expert witness on that bill before the Texas House Committee on Legal Affairs.
Craig headlined a presentation last January at the Texas Hospital Association Annual Meeting on the status of the discrimination provisions contained in Section 1557 of the Affordable Care Act. This presentation was well received as the newly elected President Trump was in the process of revising many of the enforcement provisions in this Obama era legislation. Definitive analysis of what was and what was to come highlighted Craig’s message.
February brought more legislative work to the Firm and an important opportunity to kill a potential bill that would have resulted in individual nurses and other healthcare providers losing their personal immunity from lawsuits under the Texas Tort Claims Act. THA and TAPA arranged for our firm to address the potential bill with key State Legislators and keep it from being filed. Brian also worked on the Federal Healthcare bill as we represented the interests of TAPA Members to insure that if Federal Tort Reform was enacted it would not replace the Texas provisions. Federal Legislation often pre-empts State Legislation and it was important to keep the Texas Reforms intact regardless of what happens in Washington.
March roared in like a lion as Craig and Brian both spoke at the THIE Hot Topics Seminar in Lubbock. Employment law, gun laws, and governance issues were included on the agenda. The Legislature kept rolling along and the Firm testified as a resource witness on several more bills. The Firm also met with Washington Lobbyists as we continued to work for preservation of all Texas Tort Reform Statutes.
April was one of the busiest months of the year with testimony at the State Capital in front of three different legislative committees. We also worked on changing the enabling legislation of a Hospital District Client in need of a different governance structure. This was in addition to a busy litigation schedule and several Hospital District Board training sessions.
May saw the regular session of the Legislature close and the preservation of every Tort Reform Statute in Texas. It also saw us at the Texas Medical Board and the Texas Nursing Board representing healthcare providers in quality of care investigations. This is an area of our practice where we excel even though many of our clients are unaware of our work there.
June was a great month as we worked with an insurance client on strategic planning with their Board. We also filed a Supreme Court brief in a health care liability case and a brief with the Fort Worth Court of Appeals on an insurance claim case. Our work with the Supreme Court and the Courts of Appeals is vital to our clients’ interest.
July brought the Legislature back into special session and we once again testified at the Texas House Calendars Committee on the new Do Not Resuscitate Bill. We also attended the THT Conference in San Antonio and saw many of you there.
August found time for a little R&R with our families and us hitting the road to attend numerous Hospital District Board Meetings. If we do not regularly attend your Hospital Board Meeting, please ask us for names of those that have us attend and visit with them to learn the benefits of having us there.
September had us back at the Texas Medical Board to successfully defend a mid-level and then present an oral argument in front of the Fort Worth Court of Appeals. It also kicked-off the Jackson & Carter Fantasy Football League. Ted Shaw, President of the Texas Hospital Association, was ready to defend his championship from the previous year. We greatly enjoy this league with our clients and encourage you to join us as a client and play along as well.
In October our firm spoke at the THIE Hot Topics event in Kerrville presenting on employment law, the DNR statute, and a legislative update.
In November, our firm spoke at the TAPA General Meeting and the American Tort Reform Association Meeting. ATRA is a National organization and other speakers included the American Hospital Association, Ford Motor Company, and Pfizer.
In December, Tess Frazier, THIE President, won the Jackson & Carter Fantasy Football League Championship. We enjoyed time with many of you at year end Board meetings and Christmas Parties. We also began to gear up for what we know will be an exciting 2018!
As has been widely reported, the Department of Labor issued its final overtime rule today raising the salary level requirement for most “white collar” exemptions, as well as for the “highly compensated employee” exemption. Here is the link to the DOL Factsheet on the new rule: https://www.dol.gov/whd/overtime/final2016/overtime-factsheet.htm This has been in the works a long time and should be no surprise to anyone. A few of the items that we did learn today are that the new rule will not go into effect until December 1, 2016 and the new standard salary level is confirmed to be $913 per week/$47,476 annually ($134,004 for the highly compensated employee exception). This means that, beginning December 1, 2016, employees earning a salary of less than $47,476 per year will not be exempt for overtime purposes. These new salary levels will now be updated every three years.
Although the new rule will allow employers to use nondiscretionary bonuses and incentive payments to satisfy up to 10 percent of the new standard salary level, “salary” for the purposes of the overtime rule does not include discretionary bonuses, payments for medical, disability, or life insurance, or contributions to retirement plans or other fringe benefits. Thus, these common employee benefits cannot be used to satisfy the $47,476 per year salary requirement. One other very basic but important point to remember is, regardless of an employee’s salary level, if the employee never works over 40 hours in a week, the employee is not owed overtime pay.
I have recently seen some employment applications that include a request for the applicant to provide information in some form regarding the need for reasonable accommodations to perform the functions of the job being applied for. Although employers are always allowed to ask applicants about their ability to perform the job, according to the EEOC, employers are not allowed to ask all applicants whether they will need reasonable accommodation to perform the functions of the job, and doing so violates the Americans with Disabilities Act. If the job application used by your business requests such information, you should remove that language from the application form. Employers are allowed, however, to ask applicants whether they need accommodations for the hiring process. Additionally, if an employer knows that an applicant has a disability, either because the disability is obvious or because the applicant volunteered the information to the employer, the employer can then ask that particular applicant about the need for accommodation. Further, once a conditional offer of employment is made to an applicant, an employer may ask that applicant about the need for accommodation, as well as other disability and medical related questions.
On Monday of this week, the EEOC issued what it calls a “Resource Document” related to employer-provided leave as a reasonable accommodation under the ADA. The document can be found here: https://www.eeoc.gov/eeoc/publications/ada-leave.cfm. This document confirms that the EEOC is serious about enforcing its position that unpaid leave is a form of reasonable accommodation for an employee with a disability under the ADA. It also contains some helpful guidance regarding the EEOC’s positions on this matter. The document points out that disabled employees who request leave provided under employer policies cannot be subjected to stricter requirements than are applied to non-disabled employees. For example, the EEOC’s position is that an employer that routinely allows employees to take a few days of annual leave without any explanation of how the leave will be used should not deny annual leave to a disabled employee who specifically states the leave is needed for purposes related to the disability. The document also confirms that an employer should not penalize a disabled employee for use of leave as an accommodation, such as on performance evaluations or under employer absence policies. The document further reminds employers that they must consider granting reasonable accommodations to allow a disabled employee to return to work after taking leave, such as modification of the employee’s work space or schedule, or reassignment to a vacant position, and EEOC takes the position that the employer must allow the employee to return to his or her original position after taking leave unless doing so would be an undue hardship.
Although the above guidance is somewhat helpful, what stands out the most to me is what the document does not say: how much leave an employer is required to grant a disabled employee as a reasonable accommodation. While the FMLA provides for a fairly clear cut 12 weeks of leave within a 12 month period, the EEOC does not place any such limitations on how much leave is required under the ADA. The EEOC’s document makes a point of instructing employers that additional leave beyond the 12 weeks granted under the FMLA can be a required accommodation, but does not give any clear guidance as to how much additional leave must be granted. What that says to me is, any time an employer denies an employee’s request for additional unpaid leave as an accommodation under the ADA, the employer must be able to articulate how the additional leave would create an undue hardship on the employer’s business. It is some consolation, however, that the federal Fifth Circuit Court of Appeals, which decides federal employment cases coming out of Texas, appears to take a more restrictive view than the EEOC of when and how much leave is required to be granted as a reasonable accommodation.