Employers Require COVID Liability Waivers as Conflict Mounts Over Workplace Safety

Employers Require COVID Liability Waivers as Conflict Mounts Over Workplace Safety

After spending a May day preparing her classroom to reopen for preschoolers, Ana Aguilar was informed that the tots would not have to wear face masks when they came back. What’s more, she had to sign a form agreeing not to sue the school if she caught COVID-19 or suffered any injury from it while working there.

Other teachers signed the form distributed by the Montessori Schools of Irvine, but Aguilar said she felt uncomfortable, although it stipulated that staff members would be masked. At 23, she has a compromised immune system and was also worried that she could pass the coronavirus on to her fiancé and other family members.

Aguilar refused to sign, and a week later she was fired. “They said it was my choice to sign the paper, but it wasn’t really my choice,” said Aguilar, who’s currently jobless and receiving $276 a week in unemployment benefits. “I felt so bullied.”

As employers in California and across the country ask employees to return to the workplace, many have considered and some are requiring employees to sign similar waivers, employment lawyers say. And many employees, mostly lower-wage and minority workers in essential jobs, are calling lawyers to complain about the waivers.

“These are illegal agreements that are totally unfair to workers,” said Christian Schreiber, a San Francisco lawyer who represents Aguilar and other employees.

The California State Legislature last year passed a law, AB-51, prohibiting employers from requiring employees or job applicants to sign away their right to pursue legal claims or benefits under state law. The law, which also prohibits firing any employee for refusing to sign, is being challenged in court by business groups.

Only a few employers have forced employees to sign liability waivers, at least partly because these waivers likely would be held unenforceable by courts, lawyers who represent employers say.

“Courts don’t recognize them because of the unequal bargaining power between employers and employees,” said Isaac Mamaysky, a partner at the Potomac Law Group in New York City. “With so many unemployed, people would sign just about anything to get a job.”

Another reason they are considered unenforceable: Workers who get sick or injured on the job generally are compensated through state workers’ compensation systems rather than through the courts, and state laws don’t allow employers to force employees to sign away their right to pursue workers’ comp claims, Mamaysky said.

Companies may have the right to require nonemployees working on their premises to sign COVID waivers. When the New York Stock Exchange reopened in late May, it made floor traders sign a form clearing the exchange of liability if they contracted COVID-19. That was legally permissible because the traders were not exchange employees, an NYSE spokesman said. He declined to say whether any traders have become infected with the virus.

The Las Vegas-based restaurant chain Nacho Daddy, which did require employees to surrender their right to sue over COVID-19, reportedly fired some who refused. Following negative media coverage, Nacho Daddy removed the language that waived legal rights and instead had employees agree to follow safety rules such as masking and social distancing. The company did not respond to a request for comment.

Having employees agree to comply with safety rules is a more common and legally acceptable approach than waivers.

“I suggest my clients go to this reasonable middle ground: Here’s what we promise to you, here’s what we want you to promise to us,” said David Barron, an employment lawyer with Cozen O’Connor in Houston.

Business groups hope Senate Majority Leader Mitch McConnell will make liability waivers unnecessary. He has proposed a Senate bill with broad liability protection for employers for five years against a range of coronavirus-related claims, and says he won’t back any COVID relief bill that doesn’t include such protections. President Donald Trump has said he supports the liability protection.

At least 10 states already have enacted laws providing some form of immunity for businesses from lawsuits brought by employees and others who contract COVID-19. Similar bills are pending in about 10 more states, according to the National Employment Law Project. The California Assembly is considering a liability protection bill for public K-12 schools.

Federal legislation to provide COVID liability relief for employers should protect only those that follow applicable health and safety guidelines, said John Abegg, executive vice president of the U.S. Chamber Institute for Legal Reform, which supports McConnell’s proposal.

But even if McConnell is able to overcome Democratic opposition and pass liability protection as part of a new pandemic economic relief bill, that still wouldn’t shield employers from lawsuits claiming gross negligence or reckless or intentional conduct in failing to implement COVID-19 safety precautions.

Across the country, hospitals and nursing homes, as well as companies like McDonald’s, Walmart and Safeway, have been hit with wrongful death lawsuits filed by families of employees who died from the virus. They typically cite egregious conduct that goes beyond ordinary negligence, potentially erasing any statutory liability relief.

Nearly 50 COVID-related lawsuits have been filed relating to conditions of employment, including exposure to the coronavirus or the lack of protective equipment, according to data collected by the law firm Hunton Andrews Kurth.

In many states, alleging intentional misconduct also may allow workers harmed by COVID-19, and their families, to file lawsuits rather than go through the workers’ compensation system, and thus seek bigger damage awards.

For instance, a suit filed in Alameda County Superior Court in June by the widow of a longtime employee of Safeway’s distribution center in Tracy, California, alleged that the company had concealed a COVID-19 outbreak from workers and informed them that personal protective equipment was not recommended, contrary to guidelines from federal and state authorities.

“I don’t know of any jurisdiction that would allow a waiver against intentional misconduct,” said Louis DiLorenzo, head of the labor and employment practice for Bond Schoeneck & King in New York, who represents employers. “That would encourage misconduct.”

Worker advocates argue that lawsuits like the one against Safeway should be encouraged — rather than blocked by waivers or immunity laws — to bring to light serious public safety problems. Cases against McDonald’s in Oakland and Chicago — in which workers claimed the restaurants had created a “public nuisance” by not taking steps to adequately protect workers and customers from COVID-19 — resulted in court orders in late June for those McDonald’s restaurants to implement safety measures such as masks, social distancing and temperature checks.

“A very tiny number of cases are being filed by workers, and those cases are valuable,” said Hugh Baran, a staff lawyer at the National Employment Law Project. “These are the kinds of claims we should want workers to bring.”

Schreiber said he contacted the Montessori school about Aguilar’s firing, and it offered to reinstate her without having her sign the waiver. But Aguilar declined, saying the school was putting teachers at risk by not requiring pupils to wear masks. The school then offered her six weeks of severance pay, which she is considering.

By refusing to sign the waiver or accept her job back, she said, she was standing up for all the teachers at the school, many of whom have children and can’t afford to lose their job.

“I liked my job and I needed the paycheck,” Aguilar said. “But making you sign these papers is telling you that whatever happens, they really don’t care.”

 

 

 

AHA Pushes Back on Politico’s Description of Nonprofit Hospital Financials

https://www.healthleadersmedia.com/finance/aha-pushes-back-politicos-description-nonprofit-hospital-financials

Image result for cherry picked

he American Hospital Association’s general counsel said Politico “cherry-picked” metrics from a recent Moody’s report.

In a blog post Wednesday, American Hospital Association (AHA) General Counsel Melinda Hatton rebuked Politico’s characterization of a recent Moody’s report on nonprofit hospital financials in 2018.

Hatton charged that Politico “cherry-picked” metrics from the report, homed in on a “single measure of financial viability,” and “ignored much of the medians data that tell a more complete story.”

Writing that the story “does not accurately capture financial pressures facing hospitals,” Hatton continued that the Moody’s report only represents a mid-year glimpse at nonprofit hospital finances. 

The public back and forth began with the May 13 edition of Politico’s Pulse newsletter, which described the state of U.S. hospitals as “OK,” citing data from Moody’s that indicated nonprofit hospital revenues grew faster than costs for the first time since 2015.

While mentioning that the average operating margin of nonprofit hospitals was 1.7% last year, Politico also noted that average operating cash flow margins finished at 8%.

Politico stated that industry observers regard operating cash flow margin as a better reflection of “how much money a hospital is actually collecting” than the operating margin.

Politico’s description tied into the push for greater accountability from hospitals regarding high prices, specifically referencing a recent RAND Corp. study that found private insurers paid more than twice what Medicare paid to hospitals in 2017.

Hospital groups like the AHA and the Federal of American Hospitals pushed back on the RAND study from last week, taking issue with its sample size and reliance on Medicare payment rates as the benchmark for hospital prices.

Writing about the Moody’s report, Hatton wrote that while hospitals did experience a “modest uptick” in revenue growth last year, such growth trailed historical levels as hospitals faced challenging patient volumes, low reimbursement rates, and shifting payer mixes.

She also noted that the Moody’s report found that inpatient services remained flat in 2018, widespread provider consolidation has offered “stability in light of downward financial pressures,” and that hospitals are continuing to put “efficiency improvements” into place.

“Many of the expenses hospitals’ are experiencing now, and will likely experience in the future, are beyond their control,” Hatton wrote. “Wages and benefits are the single largest cost for hospitals, and are likely to increase in the future as the nation experiences a robust labor market, and a nursing shortage persists in many communities. The high cost of specialty drugs is also a driver of the cost of care.”

“These complexities make for a nuanced story, but any story worth telling is worth telling well,” Hatton wrote.

 

 

 

 

 

Nonprofit Hospital Consolidation to Continue in 2019

https://www.healthleadersmedia.com/finance/nonprofit-hospital-consolidation-continue-2019

Despite increased scrutiny from regulators, nonprofit health systems will remain active through mergers and acquisitions this year, according to a new Moody’s report.

The deluge of M&A activity among nonprofit health systems is expected to continue on in 2019, with the potential for some “unconventional relationships,” according to a Moody’s report released Friday morning.

Driven by tight financial conditions challenging the nonprofit hospital business model, as well as the entrance of nontraditional corporate players to healthcare and the potential changes to the ACA, more M&A activity is expected throughout the year.

Moody’s expects nonprofit health systems to engage in partnerships with other hospitals but also seek to align with companies specializing in data analytics or ridesharing services to continue the transition from inpatient care to outpatient care.

Nonprofit health systems are also aiming to increase their footing when negotiating with payers, which involves strategic decisions to diversity service options and increase their geographic reach.

The report cites ProMedica’s acquisition of HCR Manorcare and Tower Health’s purchase of five for-profit acute care hospitals as examples of nonprofit systems taking a short-term credit hit to gain stable long-term positioning for the organization.

Though M&A activity is expected to be widespread and a primary objective for many nonprofit systems, the Moody’s report warned that additional scrutiny from state and federal regulators is on the way.

The requirements put in place on the CHI-Dignity Health merger by California Attorney General Xavier Becerra, along with price increase restrictions imposed by Massachusetts Attorney General Maura Healey on CareGroup and Lahey Health, are cited as examples of the terms health systems should expect to meet.

For-profits will tap into capital markets

The Moody’s report also indicates that for-profit hospitals will delve further into capital markets so long as they remain receptive and buoyed by low interest rates. This approach could lead to lower interest costs and improve liquidity, which would bolster their credit standing.

Jessica Gladstone, Moody’s associate managing director and lead analyst on for-profit hospitals, told HealthLeaders that rising interest rates would a material impact on many for-profit hospitals.

“High cash interest costs relative to earnings are already consuming the majority of cash for many FP hospital companies,” Gladstone said. “For companies with floating rate debt, rising interest rates (depending on the amount of the increase) could leave some FP hospitals with very little free cash flow left to pay down debt or otherwise invest to grow operations.”

Gladstone added that while many of the same headwinds facing for-profit hospitals remain a challenge in 2019, executives can be encouraged by the opportunities ahead to refinance high-cost debt and achieve cost savings.

Several deals are listed as potential opportunities that could benefit for-profit healthcare organizations in 2019 regarding changes to capital structure, interest cost savings, as well as M&A activity:

Additional highlights from the Moody’s report:

  • Expect smaller community and regional nonprofit hospitals to join cooperatives to gain leverage at the negotiating table on supply costs among other price points.
  • Growing investment by private equity firms in physician practices and ambulatory services, will put a pinch on nonprofit systems.
  • The entrance of Amazon, Walmart, and Apple can’t be discounted as another driver of M&A activity in 2019.
  • Vertical mergers like CVS-Aetna and the continued rise of telemedicine will drive patients away from traditional areas of care delivery, like hospitals.
  • Though major changes to the ACA remain unlikely due to the split government in Congress, smaller changes could still make a significant impact.
  • The report cites potential changes to site-neutral payments, Medicare quality-factor penalties, and DSH payment reductions as examples.