Category Archives: Healthcare

What to do When Your Employee Tests Positive for COVID-19

Contributed by John Hayes, April 30, 2020

clip board and stethoscope conceptual illustration

With the constantly shifting state and local stay-at-home orders and the potential relaxing of these orders on the horizon, the question for employers still remains: What do we do if an employee has COVID-19? 

Once an employer receives a report that an employee has tested positive for or is presumed to have COVID-19, the employer should do the following:

  • Instruct the infected employee to stay home for the longer of the period of time recommended by his or her health care provider or the applicable health department or until 1) at least 3 days (72 hours) have passed since resolution of fever without the use of fever-reducing medications AND improvement in respiratory symptoms (e.g., cough, shortness of breath); and 2) at least 7 days have passed since symptoms first appeared. Employers may not disclose the identity of the employee diagnosed with or presumed to have COVID-19. Employers are also required to maintain the privacy of any health information they gather related to an employee’s medical condition or their symptoms, and any such documentation should be kept in a private health folder, separate from the employee’s personnel file, with limited access by only critical human resource staff.
  • Interview the infected employee to determine all co-workers, clients, vendors, or guests with whom the employee may have come into close contact during the 14-day period prior to the positive test or presumption of being positive for COVID-19 (the “Incubation Period”). “Close contact” means being within six feet of the sick employee for a prolonged period (10-30 minutes). The employee should also be asked to identify all areas within the workplace where he or she was physically present during the past 14 days and any employees with whom he or she shared a workspace or equipment. (The local health department may conduct this interview and provide the employer with this information.)
  • Contact directly each close contact and each co-worker who shared a workspace with the sick employee and advise that a person with whom they have been in recent contact and/or with whom they recently shared a common work area has been diagnosed with COVID-19. Instruct them that they are to remain out of the office for at least 14 days since the last contact with the infected employee and to work remotely, if possible. The co-workers should be encouraged to self-isolate and seek all medical care and testing that they feel may be appropriate. (The local health department may order the employees to be off work and inform the employer that it has done so.) It should also be noted that pursuant to recent CDC guidelines, under certain circumstances, an employer may allow an employee who is asymptomatic but was exposed to return to work.
  • Consider notifying clients, vendors and/or guests who may have been exposed to the diagnosed employee, while maintaining confidentiality.
  • Consider the wage and hour issues, such as mandatory paid sick leave, if the infected employee and close contacts are not able to work remotely and communicate the pay policies to employees pursuant to the FFCRA. 
  • Consider issuing a general notice to the workforce that an employee has tested positive for or is presumed to have COVID-19 (without identifying the employee). Any such notice should reassure employees that, unless the employee has been notified directly by the employer, the employee is not believed to have been in close contact with or shared a common workspace with the infected employee. Employees should be told all the steps the employer is taking to ensure their safety and should be advised to monitor themselves for symptoms of COVID-19 and reminded not to come to work if they are sick.
  • Shut down those areas of the workplace identified by the infected employee as areas that he or she used until those areas can be cleaned in accordance with CDC guidelines.

While employers may require a doctor’s note permitting an employee to return to work after recovering from COVID-19 or being mandatorily quarantined, such a requirement may not be practical. Acceptable alternatives include relying on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have COVID-19.

State, federal, and local discrimination laws remain in place and apply to harassment related to COVID-19, which may take the form of race and national origin harassment. Employers should inform all employees that such harassment will not be tolerated.

Employers should take action immediately in response to an employee who reports a positive test for or a presumption of COVID-19. Employers should be flexible and efficient in order to maintain a safe workplace and allow the focus to be on the work of the company going forward. 

CDC Issues Guidance on the Coronavirus for Employers

Contributed by Suzannah Wilson Overholt, February 24, 2020

As the new coronavirus (COVID-19) slowly appears outside China, employers should take precautions to protect their workplaces. To that end, the Centers for Disease Control (CDC) issued guidance for businesses and employers regarding COVID-19.

 While the flu and COVID-19 have similar symptoms, COVID-19 is not the flu. Coronaviruses range from the common cold to SARS and MERS (Middle East Respiratory Syndrome). COVID-19’s symptoms are a mild to severe respiratory illness with fever, cough, and difficulty breathing. Symptoms may appear in two to 14 days after exposure. There is no easy way to test for COVID-19. A person may be infectious even if she does not have symptoms. COVID-19 appears to spread between people who have close contact with one another, i.e., being coughed or sneezed upon.

The CDC’s guidance is intended to help prevent workplace exposures to acute respiratory illnesses, including COVID-19, in non-healthcare settings. The guidance should be used to determine the risk of COVID-19 infection. Determinations of risk should not be based on race or country of origin. Confidentiality of people with confirmed coronavirus infection must be maintained.

  • Actively encourage sick employees to stay home: 
    • Employees who have symptoms should stay home until they are free of fever, signs of a fever, and any other symptoms for at least 24 hours, without the use of medication.
    • Ensure that sick leave policies are flexible, consistent with public health guidance, and employees are aware of these policies.
    • Do not require a healthcare provider’s note for employees to validate their illness or to return to work. Healthcare providers may not be able to provide such documentation in a timely way.
    • Maintain flexible policies that permit employees to stay home to care for a sick family member.
  • Employees who appear to have symptoms upon arrival to work or during the day should be sent home immediately.
  • Emphasize coughing/sneezing etiquette and hand hygiene. Provide tissues, no-touch disposal receptacles, soap and water, and alcohol-based hand rubs.
  • Perform routine environmental cleaning of all frequently touched surfaces and provide disposable wipes so that commonly used surfaces can be wiped down before use.
  • Advise employees to take certain steps before traveling:
    • Check the CDC’s Traveler’s Health Notices for guidance and recommendations for each country to which they will travel.
    • Check themselves for symptoms before starting travel.
    • Notify their supervisor if they become sick while traveling and promptly call a healthcare provider for advice if needed.
    • If outside the United States, follow the company’s policy for obtaining medical care or contact a healthcare provider or overseas medical assistance company to assist with finding an appropriate healthcare provider. A U.S. consular officer can help locate healthcare services.
  • Measures for employees who may have been exposed:
    • Employees who have a sick family member at home with COVID-19 should notify their supervisor.
    • If an employee is confirmed to have COVID-19, the employer should inform fellow employees of their possible exposure but maintain confidentiality.
    • Exposed employees should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

We will continue to monitor developments in this area.

The Doctor is In – At Amazon

Contributed by Suzannah Wilson Overholt, October 30, 2019

Studio macro of a stethoscope and digital tablet with shallow DOF evenly matched abstract on wood table background copy space

Last year we reported on Haven Healthcare, the venture started by Amazon, Berkshire Hathaway and J.P. Morgan. Amazon has now announced a pilot program for its employees in Seattle that puts a modern spin on employer provided health care.

Announced in September, Amazon Care  provides telemedicine and in-person health care services. Employees can see a provider via a mobile app or website and text a nurse on any health topic. If follow-up care is needed, a nurse can make a home visit. Amazon contracted with a private practice for the nurse visits to collect lab samples, perform some testing (e.g. strep throat), administer common vaccines, and perform physical examinations. Courier Care delivers medications to employees’ homes (likely linked to Amazon’s earlier purchase of medication delivery company PillPack).

This announcement follows Amazon’s hiring of a health care technology expert and a physician who supervised a chain of health clinics in Seattle. Amazon strengthened the telemedicine component of Amazon Care last week when it purchased Health Navigator, which supports medical providers through automated technology.  Health Navigator has a tool that recognizes a patient’s written complaints and acts like a doctor would when listening to a patient describe symptoms. The company also has a health “bot” chat function that asks a patient questions and then interprets the answers to recommend next steps for care. A “diagnosis symptom checker” generates a list of possible causes for a symptom based on a patient’s responses to questions. 

Amazon Care is not connected to the employees’ regular health care providers, which may limit coordinated care. However, Amazon maintains that the program is a supplement to, not a substitute for, health insurance already offered to its employees. Only employees who participate in Amazon’s health plans can participate in Amazon Care. 

Amazon’s model is a far cry from the employer sponsored health clinics of yesteryear and reflects a growing trend among employers interested in controlling health care costs. Employers hope such clinics will prevent chronic diseases among their workforce through a renewed emphasis on primary care and improve productivity since employees do not have to miss time from work for doctors’ appointments. They are also a recruiting (and retention) tool.  Clinic operators have been exploring ways to use technology or develop new models to extend the reach of their services.  

In 2018, a-third of U.S. employers with 5,000 or more employees offered general medical worksite clinics, up from 24% in 2012. Many of these employers contract with third-party clinic operators, creating a growing market for such companies. Health systems operate about 18% of worksite clinics

Amazon’s model is different, however, because Amazon is self-insured and is creating its own health care system separate from the existing market by contracting directly with providers and acquiring the assets to provide telemedicine services. This appears to be an introduction to Haven Healthcare’s objective and could have wide ranging implications for insurers, health care providers and employers by restructuring the manner in which health care is provided and coordinated. We will continue to monitor this developing trend and provide further updates.  

Can Employers Drop their Health Plan and Just Give Employees Cash Instead?

Contributed by Rebecca Dobbs Bush, July 23, 2019

stethoscope on cash cost of healthcare concept

Several years ago, a trend was emerging that consisted of third-party, private marketplaces where employers could have their employees purchase health care with an “allowance” of sorts. This “allowance” could be facilitated by an employer that set up a stand-alone Health Reimbursement Arrangement (HRA). The emerging trend was analogous to the way traditional pension plans evolved to 401(k)s. Then, before things could take off, the Affordable Care Act put a halt to it. Essentially, the ACA said that these stand-alone HRA plans broke the rules because they had annual limits. And, under the ACA, health plans were not allowed to have annual limits on the amount of benefits provided. So, employers moved on and tried to look for a different way to reduce the amount they were spending on health benefits for their employees.

Then, on June 13, 2019, the tide turned and the Department of Health and Human Services (HHS), the Department of Labor (DOL) and the Internal Revenue Service (IRS) issued a coordinated set of final regulations that essentially said they changed their mind.

To clarify a bit, the regulations are complex and a business is certainly not free to just start handing out cash to their employees instead of a health insurance card.  However, with the right plan documents in place and the correct administration followed, an employer can set up a scenario where an employee has an “account” that covers all or part of the expense for that employee to purchase individual coverage on his/her own.  In other words, an employer electing this path should make sure he or she is guided by the right attorney, insurance broker, and human resources team.

Why would this arrangement be helpful?  Think of it in this scenario…. Each year most employers hold their breath just a bit while they wait for their renewal rates to be provided by their carrier.  There is almost always some type of increase.  And at that point, an employer must make tough decisions about how much of that increase, if any, they can absorb for the employee.  Worse yet, most employees never really seem to understand or appreciate the full dollar amount the employer is paying on his/her behalf.

Now, in contrast, think about how an employer reimburses employees for cell phone expenses.  The employee individually purchases whatever plan that they want, spending more if they want, buying a nicer phone if they want, etc.  Each month, the employer simply reimburses each employee the same amount – regardless of whether they picked the basic or pricey plan.  Most employees easily understand what cell phone benefits exist and exactly how much the company covers.  It certainly makes things a bit clearer for an employee when they are involved in that transaction each month.

If a company can now potentially treat its health plan expenses the same way?  It could be a game-changer in successfully managing health care expenses. 

What You Don’t Know Can Hurt You: Employee Background Checks at Skilled Nursing Facilities

Contributed by guest author Adam Doerr, with Suzannah Wilson Overholt, March 13, 2019

Skilled Nursing Facilities (SNFs) are responsible for shielding residents “from abuse, neglect, misappropriation of resident property, and exploitation.” 42 C.F.R. § 483.12. This regulation implicates the employment process, since SNFs are prohibited from employing “or otherwise engag[ing]” individuals who have been “found guilty by a court of law,” had a “finding entered into the State nurse aide registry,” or had “a disciplinary action in effect against his or her professional license” as a result of “abuse, neglect, exploitation, mistreatment of residents or misappropriation of their property.” 42 C.F.R. § 483.12(a)(3)(i)-(iii). One of the most important ways that SNFs can protect residents is by properly screening and monitoring their employees.

cv review flat illustration. hand with magnifier over curriculum vitae

There are no federal requirements for how a SNF should screen its employees. However, there is a variety of agency guidance that describes what a thorough screening process should look like. According to the State Operations Manual, Appendix PP, a facility should conduct a thorough “investigation of the histories of . . . prospective staff.” Any individual hired or otherwise engaged by the facility should be screened, including “the medical director, consultants, contractors, volunteers” and students in training programs. The screening must also be thorough, including checking the State nurse aide registry and licensing authorities, contacting previous employers, attempting to identify prior criminal prosecutions, and checking the HHS Office of Inspector General’s List of Excluded Individuals/Entities (“Exclusion List”). The Exclusion List is a searchable electronic database of individuals and entities who are excluded from participation in any federal health care program, including Medicare and Medicaid, for the commission of certain crimes and violations laid out in 42 U.S.C. § 1320a-7. A SNF may not receive payment from a federal healthcare program for any items or services furnished, ordered, or prescribed by an excluded individual or entity. If a SNF does receive payment for services provided by an excluded individual or entity, the SNF could be subject to civil monetary penalties. Because the consequences of hiring an excluded individual are so severe, CMS has issued letters to each state Medicaid director reminding them to have employers check the Exclusion List monthly. Certain states, such as Indiana, have made such monthly checks mandatory.

Finally, the Office of Inspector General has also issued guidance urging healthcare providers to check the System for Award Management (“SAM”) database maintained by the General Services Administration. The SAM database includes a list of suppliers, vendors, and individuals who are excluded from receiving contracts or other financial assistance from the federal government. Thus, checking this list should be part of any screening process for prospective employees.

Conducting thorough screenings of all prospective employees is important in a SNF’s ongoing efforts to protect residents from abuse or mistreatment. Following state and federal guidance and regulations is the best way to ensure that screenings are appropriate.

The Importance of Documenting the Failure to Document

Contributed by Suzannah Wilson Overholt, February 20, 2019

Doctor, medical charts

One of the biggest challenges faced by health care providers is ensuring proper documentation in patient charts. Shortcomings in charting can result in lost revenue due to third party payers’ assigning a lower CPT code or refusing to pay a claim. Even worse, poor charting may prompt an equally poor survey result. 

Convincing employees to stay on top of charting can be difficult and frustrating but taking appropriate action against those who fail to do so and documenting that action is critical. A recent decision by the U.S. District Court for the Western District of Wisconsin illustrates the manner in which an employee’s failure to chart should be properly documented through the disciplinary process, and how such effective documentation may be used to defend against claims for discrimination and/or wrongful termination.

In Blumentritt v. Mayo Clinic Health System – Franciscan Healthcare, Inc. (W.D. Wis. Feb. 6, 2019), the district court granted summary judgment in favor of the Mayo Clinic due, in part, to its well-documented history of disciplinary action against Mr. Blumentritt for his failure to complete charting in a timely manner. The following best practices were used by the Mayo Clinic:

  • Charts were audited for completeness;
  • When an audit revealed an employee with a significant number of incomplete charts, the supervisor had a coaching session with the employee and established clear, achievable goals for the employee;
  • The supervisor monitored the employee and, when he failed to meet the goals, gave him a performance counseling;
  • The supervisor took the employee off of performance counseling and provided positive feedback for his accomplishment when he improved;
  • When the employee backslid, the supervisor gave him an improvement plan with specific objectives and due dates for achieving those objectives, as well as a warning that failure to complete documentation according to established policies or adhere to the timeline would result in termination;
  • The supervisor revised the timeline for the improvement plan when the supervisor’s schedule interfered with the deadlines;
  • When another audit revealed the employee again failed to complete patient charts, the supervisor gave the employee a last chance warning; and
  • When a follow up audit revealed that the employee’s charting was incomplete and the employee failed to correct the problem after being given an opportunity to do so, he was terminated.

The one weakness in the process appears to have been the Mayo Clinic’s failure to take action against Mr. Blumentritt when he did not meet the deadlines set in the performance improvement plan.  On the flip side, a real strength is that the Mayo Clinic did not restart the disciplinary process when the employee backslid, and instead resumed at an appropriate level given the prior infractions. The well-documented disciplinary measures against Mr. Blumentritt were critical to the Mayo Clinic’s ability to defend against his claim that he was terminated because he was a gay male. 

The takeaways from this decision are to act on audit results, document action taken, follow through, and keep the pressure on the employee to perform. (Also worth noting is that the court did not question the Seventh Circuit Court of Appeals’ decision in Hively v. Ivy Tech Comm. Coll. that discrimination on the basis of sexual orientation is prohibited by Title VII of the Civil Rights Act of 1964.)

Basics of the HIPAA Privacy Rule for Employers

Contributed by Rebecca Dobbs Bush, July 30, 2018

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) addresses, among other things, the use and disclosure of individually identifiable health information, referred to as “protected health information” or PHI. Many employers are confused as to how the HIPAA Privacy Rules apply to them. With requests for FMLA and accommodations for disabilities, employers are handling very sensitive and private information about their employees on a daily basis. While it is impossible to thoroughly address the multitude of issues within the HIPAA privacy rules in a short article, following are some basic points that should help most employers in navigating compliance with HIPAA privacy rules.

HIPPA RegulationsHIPAA privacy rules generally do not directly affect employers unless they are a “covered entity” as defined under HIPAA. Covered entities typically include health plans, health care clearinghouses, and most health care providers. Even a health care provider may not be directly subject to HIPAA Privacy Rules in their role as an employer. HIPAA regulations provide an example involving a health care employee: When a clinic employee visits a doctor for treatment, her medical file is PHI. However, when that employee takes the doctor’s note she received during her visit and turns it in to HR for attendance purposes, the document is now part of her employment file and is no longer PHI in that setting.

Avoid receiving PHI from your group health plan.  If you do not maintain a self-insured health plan you can minimize the need to comply with HIPAA privacy rule requirements simply by restricting your insurer from sharing the information. Generally an insurer should not be sending PHI to the employer unless the plan document specifically states which employees may receive PHI and for what purposes. Your plan document should not unnecessarily designate employees to receive PHI. It is a good idea to review insurance contracts and plan documents and make sure they limit the role the employer plays in administering the group health plan.

Outsource Administration of group health plans, including flex spending accounts.  If you have a self-insured health plan and/or a flex spending plan, you need to make sure those plans are administered in compliance with HIPAA privacy rules. However, if you hire a third party administrator, you can and should shift the flow of the PHI to the third party administrator who will be handling the claims. This step greatly simplifies what an employer has to do to be in compliance with HIPAA as it greatly limits the amount of PHI the employer receives. Instead, you can focus on making sure you have a Business Associate Agreement in place with the third party administrator.

As with everything, there are exceptions to these basic points. For example, the privacy rules contain special provisions relating to workers’ compensation laws allowing for an employer to obtain PHI directly from a health care provider when “necessary” to comply with workers’ compensation laws. Another exception exists in the privacy rules excluding self-administered plans with fewer than fifty (50) participants from being subject to HIPAA privacy regulations. It is always best for an employer to consult with counsel on any of these issues.