On Friday, September 21, the Department of Health announced that it would be postponing certain wage parity deadlines. Specifically:
Author: Emina Poricanin
OMIG Publishes FAQs on its Compliance Regulations
The New York State Office of Inspector General has published a
Comptroller Finds DOH Allowed Millions of Medicaid Dollars to be Mis-Spent
In a recent report released earlier this week, New York State Comptroller Tom DiNapoli said that audits performed by his office of the state Department of Health (“DOH”) showed that hundreds of millions of Medicaid dollars were inappropriately spent on costs that another federally funded health plan (Medicare or the Essential Plan) should have paid.
IRS Imposes a Moratorium on Processing of new ERTC Claims
On September 14, 2023, the IRS announced it has ceased processing new ERTC claims. The moratorium will last at least through the remainder of 2023.
Now in Effect, NY’s Disclosure of Material Transactions Law
Effective as of August 1, 2023, Article 45-a of the Public Health Law requires parties in any “material transaction” involving a “health care entity” to provide written notice of such transaction to DOH at least 30 days prior to the closing of the transaction.
Summary of I-9 Developments for Home Care Providers
During the pandemic, the US Department of Homeland Security (“DHS”) took several steps to alleviate employers’ obligations with respect to verifying employment eligibility of new hires. In particular, businesses operating completely remotely were allowed to do “remote” employment verifications of new hires for I-9 purposes.
The NYC Fair Chance Act – A Trap for the Unwary
Why is this information relevant to you now?
A number of home care providers have been receiving “lawyer letters” and damages demands from worker advocacy groups, such as the “Bronx Defenders” or the “Brooklyn Defenders.” These groups claim that home care providers are violating the NYC Fair Chance Act (“FCA”) in how they apply the criminal background check laws to new hires or current employees.
Brooklyn Based Home Care Agency Sued by EEOC for Assigning Aides to Cases Based on Patients’ Racist and Discriminatory Preferences
The Equal Employment Opportunity Commission has filed a lawsuit in federal court against a home care agency, claiming that the agency “routinely would accede to racial preferences of patients in making home health aide assignments, including by removing Black and Hispanic home health aides based on clients’ race and national origin-based requests.
NLRB Moves Closer to Banning Use of Noncompetes and Other Restrictive Covenant Agreements
On May 30, 2023, the National Labor Relations Board (“NLRB”) General Counsel, Jennifer Abruzzo, issued a memo titled “Non-Compete Agreements that Violate the National Labor Relations Act.” The memo details how the NLRB views non-compete agreements between employers and employees and suggests that, generally, non-compete agreements violate employees’ rights under the NLRA. Importantly, a memo is not a decision, meaning there is no decision holding that a non-compete violates the NLRA.
By way of background, Section 7 of the NLRA protects employees’ rights, and it is an unfair labor practice “to interfere with, restrain, or coerce employees in the exercise” of rights guaranteed under Section 7. The NLRA applies to employees that are represented by a union, and those that are not represented by a union.
According to the memo, non-compete agreements violate the NLRA unless they are “narrowly tailored to address special circumstances justifying the infringement on employee rights.” The memo describes the following types of protected activities that non-compete agreements allegedly suppress:
- Concertedly threatening to resign for better conditions: Non-compete agreements can discourage employees from collectively threatening to quit as a negotiation tool for better working conditions due to fear of limited employment opportunities and potential legal consequences.
- Carrying out concerted resignations for better conditions: The agreements can discourage group resignations intended to improve working conditions, as employees might fear being unable to secure new employment due to the non-compete restriction.
- Seeking or accepting employment with a competitor: Non-compete agreements can deter employees from pursuing employment with local competitors to improve their working conditions, as this could potentially breach the agreement.
- Soliciting co-workers to work for a local competitor: Employees may fear inviting co-workers to join a local competitor due to the potential legal ramifications associated with breaches of non-compete agreements.
- Seeking employment to engage in protected activities: Non-compete agreements can discourage employees from seeking new jobs to engage in protected activities, like union organizing, at the new workplace, as the agreements limit their mobility and potential employment opportunities.
The potential implications of this memo could be vast. It suggests that employers should exercise caution when requiring non-compete agreements and that such agreements should be narrowly tailored to specific, valid business interests. It specifies that “a desire to avoid competition from a former employee is not a legitimate business interest that could support a special circumstances defense.” The memo could also potentially open the door for legal challenges against overbroad non-compete agreements.
Employers should review their template noncompetition agreements to ensure that they do not run afoul of the NLRB’s memo and, where appropriate, update and re-issue amended agreements to current employees.
New York Slated To Repeal The Covid-19 Vaccine Mandate For Healthcare Workers
Today, the New York State Department of Health announced that it will be repealing the COVID-19 vaccination mandate that had been required for healthcare workers per Department regulations since 2021. This repeal will apply to covered workers in entities licensed by Public Health Law articles 28, 36 (such as LHCSAs), and 40. (As a reminder, the vaccine was not mandated for personal assistants in CDPAP, making recruitment and retention much easier for CDPAP over the last two years).
According to the Department’s announcement, formal action by the Public Health and Health Planning Council will be required to officially repeal the vaccination requirement, and the Council does not meet again until the fall. Nonetheless, the Department will be issuing a Dear Administrator Letter (“DAL”) either today or soon after today that will, at least administratively, rescind the COVID vaccine mandate and abate enforcement action related to the vaccine mandate. Thus, relief from this requirement should be relatively immediate for providers.
We will await the issuance of the formal DAL from the State and provide more updates as they become available. In the meantime, clients are encouraged to reach out to their counsel if they have questions about the legal implications of this development.