Tag Archives: CNA

Did the Supreme Court undercut ADA protections for employees of religious hospitals?

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Last week the Supreme Court decided that two teachers working at Catholic schools could not sue their employer for discrimination because of the “ministerial exception” to federal workplace discrimination laws.

The Supreme Court clarified (or broadened) what kind of religious school employees are excluded from anti-discrimination laws. The Supreme Court held that the First Amendment’s Religion clause precluded courts from second guessing the reasons for firing ministerial employees. The court held there was no formula for who was a ministerial employee. The court stated that depended on the extent an employee conveyed the message of the church and carried its mission.

Arguably, the Morrissey-Berru decision and the Hosanna-Tabor decision which it relied on only apply to religious school teachers. Before these decisions, lower courts held that most religious school teachers were covered under federal civil rights laws. (See the dissent from Justice Sotomayor starting at page 37 of the opinion.)

Who else will be excluded from civil rights laws?

So, if churches have broader latitude to discriminate against employees, how broad is that latitude. Would this apply to nurses and nurses aides at hospitals affiliated with a church? Nurses and nurse’s aides are often injured at work. Because of this fact, they often need to invoke the Americans with Disabilities Act (ADA) and Family Medical Leave Act. (FMLA) Would a religious hospital argue the ministerial exception to argue the ADA and FMLA did not apply to a nurse or nurse’s aide hurt at work?

So far, at least in Nebraska and the Eighth Circuit I haven’t seen any cases where that happened. But Catholic Health Initiatives (CHI), a major health care employer locally, has some expressly religious statements in its mission statement. Would that language be enough to argue ministerial exception? Maybe not, but religious freedom advocates have advised employers about steps they can take to invoke the ministerial exception defense.

Another commonality between Morrisey-Berru and Hosanna-Tabor

I believe that major church-affiliated health care employers will continue to follow the ADA and FMLA. Major employers and their HR departments tend to be risk-averse. But in litigated cases, I believe outside counsel would push ministerial exception arguments.

Both the Hosanna-Tabor and Morrisey-Berru cases involved ADA claims. This fact fails to surprise me and I doubt that it’s entirely coincidental. From a practical perspective, ADA claims tend to be better cases for employees than other civil rights cases. I believe this is so because employers are more likely to botch ADA/FMLA compliance than other forms anti-discrimination laws. Arguing the ministerial exception is one way to defeat an otherwise valid ADA case.

A return to the pre-ADAAA bad old days?

But when I started practicing in 2005, ADA cases were harder to win. What changed was the ADA Amendments Act of 2008 which broadened the definition of disability. That change made ADA cases easier to prove.

Those changes to the ADA also made it easier for workers to heal from work injuries and return to work after injury. Pre-2008, if an injured worker was not ready to return to work after their 12 weeks of FMLA leave they would likely be fired. This threat often forced injured workers to attempt to return to work before they were ready. In tandem with “100 percent healed” policies, injured workers would also work with their doctors to downplay or eliminate work restrictions. An employee who returned to work with “no restrictions” before ready risked injury and also compromised the value of their workers’ compensation case.

But if courts extend Hosanna-Tabor and Morrisey-Berru to health care workers, the past is prologue for those workers. If courts extend these cases to hold the FMLA does not apply to health care workers, the future may be worse than the pre-ADAAA past.

Common law employment law claims?

Left unaddressed by the Supreme Court is whether religious employers can claim exemption from common law employment law claims. For example, Nebraska law makes it unlawful to retaliate against a worker claiming workers compensation. The Nebraska Workers Compensation Act covers churches and church employees. Arguably it would defeat the purpose of that law to allow churches or religious employers to retaliate against those employees.

On the flip side, Supreme Court cases about employment law tend to persuade state court judges. In her dissent in Morrissey-Berru, Justice Sotomayor criticized the ministerial exception as judge-made law. But the law prohibiting employers from retaliating against employees who claim workers’ compensation is also judge-made. That fact may make judges in Nebraska more willing to create a ministerial exception in common law anti-retaliation claims.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Overtime and Minimum Protections Laws Upheld for Home Health Aides

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On Monday, the U.S. Supreme Court refused to review a federal circuit court’s decision upholding a rule by the U.S. Department of Labor that would extend overtime and minimum wage protections to home health aides. This decision is a win for workplace fairness and safety.

This blog has been following this issue since a federal district court struck down this rule early in 2015. Though this rule may not have an impact on workers’ compensation directly, the fact that home health aides are covered by wage and hour laws would make it more likely that they would be treated as employees and more likely to be covered by workers’ compensation laws as employees.

The fact that home health aides appear poised to gain overtime and minimum wage protections should also improve pay and benefits for Certified Nursing Assistants (CNAs) who perform similar to work to home health aides. Higher pay for CNAs could lead to better patient care and fewer injury claims.

The Supreme Court’s refusal to hear the appeal relieves uncertainty over whether the rule applies or not. The U.S. Labor Department declared the rule was effective on Oct. 13, 2015. Since the court challenge failed, the rule should be effective. If you have questions as to whether you are covered by the rule or not, please visit the Labor Department’s site about wage and hour protections for home care workers.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Why CNAs and Home Health Aides Should Care about the Fight over a Federal Regulation

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090429-A-0868C-005A U.S. District Court in Washington, D.C., recently struck down a federal regulation that would mandate that home health aides are paid the minimum wage and paid overtime under the federal Fair Labor Standards Act (FLSA). Though the decision will likely be appealed, this decision is still a bad decision for the men and women who do the hardest jobs in health care – home health aides and certified nursing assistants.

Why home health aides aren’t covered by federal wage laws

Home health aides were exempted from the FLSA 40 years ago in order to make caring for the elderly less expensive. However, companion care has become a big and very profitable business. An index of publically traded home-health-care stocks has consistently outperformed the stock market as a whole for the last 13 years. This profitably is due in part to the minimum wage and overtime exemptions for home health aides.

How the home health exception affects other jobs in the medical field

The federal government estimates that nearly 1 million are employed as home health aides, while private sources estimate that number as 2 million. Home health is also a fast-growing field of employment. Home health aides essentially have the same job duties as certified nursing assistants (CNAs). CNAs are generally covered by minimum wage and overtime laws, but workers with the same skills and same duties are exempt from those laws if they are working as home health aides. CNA wages are pushed down by home health aide wages, which are exempt from federal wage laws.

Why pay is about more than wages

A recent study of CNAs showed that nearly 60 percent of CNAs report injuries during a 12-month period. The injury rate is similar for home health aides. The study also showed that higher-paid CNAs were injured less frequently than lower-paid CNAs. The study indicated that organizational factors really drove injury rates among CNAs. In other words, in settings where CNAs are truly valued, paid fairly and trained, the injury rates are lower. But if CNAs are treated as low-wage, high-turnover cogs in a machine, then injury rates are higher. Low pay for CNAs and home health aides isn’t just an issue for employees. Low pay for home health aides and CNAs has been linked to poor patient care.

While the Obama administration has been criticized for being too aggressive in enforcing the FLSA, the U.S. Department of Labor announced that they will delay enforcement of the home health aide regulation until July 2015. This assumes courts will let the Department of Labor actually enforce the regulation. Anyone concerned about this issue should contact their members of Congress to support legislation that ends the home health aide exception. People should also contact their state legislators to support legislation that would ensure that home health aides are covered by state wage and hour laws.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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