Labor and Employment Law Weekly Update

11 October 2010 Publication

Legal News: Employment Law Update

Health Care Reform Update: Will You Be Eligible for Grants for Workplace Wellness Programs?
By Kristy Marino

We have previously reported on the changes that the health care reform bill — the Patient Protection and Affordable Care Act (PPACA) — will have on your workplace. See “What Should Human Resources Be Doing to Prepare for Health Care Reform?” (http://tinyurl.com/36todbj) and “Benefits of Grandfather Status Likely to Be Short-Lived” (http://tinyurl.com/3yzbbsy).

In addition to those changes, the PPACA also provides for a grant program to assist smaller employers to provide workplace wellness programs. The Act stipulates that wellness programs can include initiatives such as health education, preventative screenings, counseling or programs to change unhealthy behaviors/lifestyle choices, and programs to encourage employee engagement/participation.

The PPACA provides that workplace wellness grants will be made available to employers who employ fewer than 100 employees working 25 hours or more per week and who did not have a workplace wellness program as of the date of PPACA’s enactment (i.e., March 23, 2010). Approximately $200 million has been appropriated for the grant program, which is scheduled to begin in 2011.

A recent report released by the Congressional Research Service (CRS) advises that employer-provided wellness programs set up under the PPACA would be subject to compliance with anti-discrimination laws and would be considered a mandatory subject of bargaining in unionized workplaces. That is, employers should take steps to ensure that their wellness programs comply with acts such as Title VII of the 1964 Civil Rights Act (which prevents discrimination on the basis of race, color, religion, sex, and national origin), ADEA, the Genetic Information Nondiscrimination Act (GINA), and ADA. For example, the CRS report advises that, if the wellness program collects genetic information, it must be voluntary, conditioned on written authorization, and must have strict privacy protections in order to comply with GINA. Additionally, the ADA would require that the wellness program be voluntary.

The Secretary of Health & Human Services is in the process of developing an application process, so stay tuned if you believe that your company may be eligible for these grants.

OSHA May Begin Regulating Medical Resident Work Hours
By Jeremy Wooden

Heeding the request of Public Citizen, an advocacy group representing more than 13,000 resident physicians, OSHA has agreed to review the possibility of limiting work hours for resident physicians. In its recent “Petition to Reduce Medical Resident Work Hours,” Public Citizen contends that regulations are necessary to protect the safety of resident physicians and to create a better standard of care for patients.

Public Citizen requests imposing the following limits on resident physicians:

  • A limit of 80 hours of work per week (no averaging)
  • A limit of 16 consecutive hours in one shift
  • A minimum 24-hour period of time off per week, and a 48-hour time off period per month
  • In-hospital and on-call frequency of no more than once every three nights (no averaging)
  • A minimum of at least 10 hours off after a day shift, and 12 hours off after a night shift
  • A maximum of four consecutive night shifts (http://www.citizen.org/hrg1917)

In its response to the petition, OSHA stated that it was "very concerned about medical residents working extremely long hours, and we know of evidence linking sleep deprivation with an increased risk of needle sticks, puncture wounds, lacerations, medical errors and motor vehicle accidents." Please stay tuned, we will update you further if OSHA decides to move forward on this proposal.

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