LEGAL AND REGULATORY ISSUES

1. LEGAL AND REGULATORY ISSUES

2. Federal and State Federal Laws and Regulations • Occupational Safety and Health Administration (OSHA) • 1970 Act-Legislation requiring employers to furnish a place of employment free of recognized hazards that are causing, or are likely to cause death or serious physical harm • OSHA-authorized to conduct workplace inspections generally in response to employer requests or employee complaints • Priorities-(in order) accidents about to happen; fatalities or serious accidents with 3 or more employees sent to the hospital; employee complaints; referrals from other agencies; targeted inspections; follow-up inspections

3. Since 1971 workplace deaths have been cut in half and injuries have declined by 40% • About 1.3 million employers with 11 or more employees must keep records of work related injuries and illnesses (20% of the establishments OSHA covers) • Workplaces in low-hazard industries (retail, finance, insurance) are exempt from record keeping requirements • Two major types of laws in the field of occupational health and safety: • Preventive-OSHA; • Compensatory-an employee injured or who becomes ill as a result of conditions on the job is compensated, including reimbursement of medical and hospital costs whether or not his own acts caused or contributed to causing the injury

4. Americans with Disabilities Act (ADA) 1990 • ADA defines disabilities in 3 ways and an individual must satisfy at least one of these to be considered under this act: • Physical or mental impairment that limits one or more major life activity • A record of such impairment • Being regarded as having such an impairment • Designed to ensure otherwise qualified individuals with disabilities have equal employment opportunities as non-disabled persons

5. Physical or mental impairment that limits one or more major life activity • The ADA covers more than just people who are deaf, people who are blind, or people who use wheelchairs. • People who have physical conditions such as epilepsy, diabetes, HIV infection or severe forms of arthritis, hypertension, or carpal tunnel syndrome may be individuals with disabilities. • People with mental impairments such as major depression, bipolar (manic-depressive) disorder, and mental retardation may also be covered.

6. A record of such impairment • The ADA also protects a person with a record of a substantially limiting impairment. • Example: A person with a history of cancer that is now in remission may be covered.

7. Being regarded as having such an impairment • And the ADA protects a person who is regarded (or treated by an employer) as if s/he has a substantially limiting impairment. • Sometimes, a person may be covered even if s/he has no impairment or has a minor impairment, particularly if the employer acts based on myths, fears, or stereotypes about a person's medical condition. • Example: An employer may not deny a job to someone who has a history of cancer because of a fear that the condition will recur and cause the employee to miss a lot of work.

8. The ADA only protects a person who is qualified for the job s/he has or wants. • The individual with a disability must meet job-related requirements (for example, education, training, or skills requirements). • S/he must be able to perform the job's essential functions (i.e., its fundamental duties) with or without a reasonable accommodation. • Practice tip: Employers do not have to hire someone with a disability over a more qualified person without a disability. The goal of the ADA is to provide equal access and opportunities to individuals with disabilities, not to give them an unfair advantage.

9. Employment-prohibits employers from discriminating based on an individual’s disabilities in all facets of employment-application and terms Public services-public entities employed in transportation must provide accessible services to the disabled Public accommodations and services operated by private entities-prohibits discrimination in lodgings, restaurants, educational facilities, etc. Telecommunications relay services-requires telephonic services carriers to provide equal communication opportunities Provisions-misc. provisions including state immunity, attorney fees and prohibition against employer retaliation Five Titles of the ADA

10. EEOC regs. State that “reasonable accommodations” means: Modifications to the job application process that enable a qualified disabled individual to be considered for a position Modifications to the work environment or the circumstances under which the position is usually performed that enable a qualified disabled person to perform the essential functions Modifications that enable a disabled employee to enjoy the same benefits and privileges as non-disabled employees Reasonable Accommodations

11. What does the ADA require an employer to do? • Employers covered by the ADA have to make sure that people with disabilities: • have an equal opportunity to apply for jobs and to work in jobs for which they are qualified; • have an equal opportunity to be promoted once they are working; • have equal access to benefits and privileges of employment that are offered to other employees, such as employer-provided health insurance or training; and • are not harassed because of their disability.

12. Reasonable Accommodation and Undue Hardship • Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. • Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation. For example: • A deaf applicant may need a sign language interpreter during the job interview. • An employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor blood sugar and insulin levels. • A blind employee may need someone to read information posted on a bulletin board. • An employee with cancer may need leave to have radiation or chemotherapy treatments.

13. When do I have to provide an accommodation? • You must provide a reasonable accommodation if a person with a disability needs one in order to apply for a job, perform a job, or enjoy benefits equal to those you offer other employees. You do not have to provide any accommodation that would pose an undue hardship.

14. What is undue hardship? • Undue hardship means that providing the reasonable accommodation would result in significant difficulty or expense, based on your resources and the operation of your business. • Practice tip: If providing a particular accommodation would result in undue hardship, consider whether another accommodation exists that would not.

15. Has had profound impact on business operations More than 85% of all non-supervisory employees are covered by this act Establishes minimum wage Sets maximum weekly hours beyond which overtime must be paid (i.e. 40 hours) Minimum wage and OT must be paid by cash or check (with some costs [lodging] allowed to be deducted from amount paid) Hours worked-includes all time employee is required to be on duty on the employer’s premises or workplace and all time employee is required or allowed to work for an employer Fair Labor Standards Act (FLSA)

16. Voluntarily performed work-employee stays longer than required-is included in hours worked (Ex: charting); employer must be sure the employee finishes at the end of the assigned hours or the employer must pay • Includes waiting time, on-call, educational sessions, meetings, training etc. • Any method of time keeping is acceptable as long as it is accurate • OT-unless specifically exempted, must receive a rate of not less than time and one-half regular rate of pay for time in excess of 40 hours in a workweek • State rules regarding OT for more than 8 hours in one workday prevail as long as they are not less than the statutory minimum

17. Minimum wage and OT exemptions: • Executive employees • Administrative employees • Professional employees • Learners, apprentices, students, children under child labor regulations • Exemptions are determined by duties, responsibilities and the salary paid NOT titles or if salaried vs. hourly employee • Most violations of FLSA are in areas of OT compensation, recordkeeping and exemption status

18. Child Labor Provisions of FLSA • Basic minimum age for employment is 16 • Employment of 14-15 years olds is possible but limited: certain occupations, only outside school hours, specified conditions of work

19. FLSA Amendments 1989 • Allow employers to require employees lacking basic skills to spend up to 10 hours in remedial training in addition to the 40 hour workweek without OT • Time in remedial education can be at regular pay • Limited to those without a high school diploma or whose reading level or basic skills are at or below the eighth-grade level

20. Equal pay act of 1963 • Requires that men and women performing equal work receive equal compensation • Prohibits discrimination in wages on basis of sex in jobs that require qual skill, effort and responsibility under similar working conditions in the same establishment

21. Deals with discrimination based on race, color, religion, national origin, age, sex, pregnancy, sexual harassment or sexual orientation Enforces Title VII (Civil Rights Act 1964) Broad investigatory responsibilities Establishes reasonable cause for charge of discrimination Attempts agreement Can bring civil action against employer on behalf of employee's Employer must “make whole” and “restore the rightful economic status” of ALL affected Courts determine relief-reinstatements, promotions, back pay, etc. Equal Employment Opportunity Commission (EEOC) and Affirmative Action

22. Civil Rights Act of 1964 • Title VII-the section of the act that is the cornerstone of equal employment opportunity • Impacts interviews, hiring practices, seniority systems, promotion • Prohibits discrimination re. compensation, terms, conditions, privileges based on: race, color, religion, sex, national origin, handicap, age or sexual preference

23. Main thrust: • Prohibits discrimination based on factors not related to job qualifications • Promotes employment based on ability and merit • Seeks to correct past injustices through affirmative action • Guiding principle-persons are considered on basis of individual capacities related to the job to be performed and not for the purpose of screening out individuals • Exception-discrimination based on sex, religion or national origin allowed IF they constitute a Bonafide Occupational Qualification (BFOQ) for an employer

24. Practice Implications • Interviewing • Advertising • Application forms • Employment testing • Wage and salary structures • Promotion • Fringe benefits • Seniority • Merit systems

25. Civil Rights Act (S 1745) of 1991 • Law allows compensatory punitive damages and the right to a jury trial for intentional discrimination based on sex, religion or disability • Provides for technical assistance and employee training

26. Age Discrimination and Employment Act (ADEA) 1967 • Purposes • Promote employment of older persons based on their ability rather than age • Prevent arbitrary age discrimination in employment • Help employers and workers find ways of solving problems based on the impact of age on employment • Requires employer not differentiate solely on the basis of age • Older persons protected by the act are now 40-70 years old (originally 65)

27. Serves 2 functions: • Prohibits arbitrary age discrimination in employment • Promotes employment based on ability • Does not lower standards • Does not make employers ignore differences in qualifications

28. Rehabilitation Act of 1973 • Section 504-”No otherwise qualified handicapped individual…shall, solely by reasons of his handicap, be…subject to discrimination under any program or activity receiving Federal Financial Assistance.” • Employment decisions must be made without discriminating against a qualified employee solely because of handicap • Imposes an obligation on employers to take positive steps to hire and promote qualified handicapped individuals • “Qualified handicapped person”-one who with reasonable accommodation can perform the essential functions of a job • Reasonable accommodations required unless they impose “undue hardship” on the operation of the program • Enforcement is under the Office of Civil Rights of DHHS

29. Immigration compliance • Immigration Act 1990 • Restructured the 1-9 form to verify the identity and employment eligibility of employees • Prohibits discrimination based on national origin or citizenship • May not require more or different documents for verification of select individuals

30. Veterans Readjustment Assistance Act • Provides reemployment right and privileges for veterans to positions they held prior to entry in armed forces • Employers must rehire vet who satisfactorily completes service if s/he applies for reemployment within 90 days of discharge • Sect. of Labor aids in seeking reemployment and other benefits

31. Pregnancy Discrimination Act (PDA) • Prohibits discrimination on basis of pregnancy, childbirth and related medical conditions • Obligates employers to treat disabilities caused by pregnancy the same as other disabilities • Can’t be denied a job, promotion, fired, forced to go on leave as long as physically capable of working • Must be reinstated after maternity leave under the same conditions as employees who return from leaves following other disabilities

32. Consumer Credit Protection Act • Employer is prohibited from discharging an employee because job earnings have been garnished

33. State Nurse Practice Acts • Each state has a practice act that governs the practice of the profession • Acts are designed to safeguard the public • Scope of nursing practice, actions and duties allowable, is defined by the state’s nurse practice act and common law • Common law-derived from principles rather than rules and regulations; consists of broad and comprehensive principles based on justice, reason and common sense

34. The act is the law within the state • Law administered by board of nursing-can’t grant exceptions, waive the act’s provisions or expand practice outside the act’s provisions • Laws and regulations under the act: • Specify conditions under which may obtain a license • Conditions for suspension or revocation • Nurse practice acts and common law define 3 categories of nurses: • Licensed practical or vocational nurses (LPNs, LVNs) • Licensed registered nurses (RNs) • Advance practice nurses

35. Reciprocity-a nurse licensed in 1 state can apply for licensure in another state because the licensure exam is “universal” • Compact states-allow licensure across state lines without separate applications • Practice acts also specify educational requirements for schools etc. • NCSBN (National Council of State Boards of Nursing)-central clearing house • Nurses must know and understand their state’s act-states vary greatly on whether nurses can diagnose and treat or merely assess and evaluate • Boards may be the same or separate for RNs and LP/LVNs

36. Institutional Licensure • None currently in place • Occasionally raises as an issue (PCA) • Allows the institution to train and license

37. Labor Management Relations: Three Major Principles • Negotiating • Collective Bargaining • Grievances

38. LABOR-MANAGEMENT RELATIONS • Negotiations • Negotiating=the mutual obligation of management and union to meet at reasonable times and bargain in good faith to reach agreement re. conditions of employment (the union contract) • Conditions of employment=personnel policies, practices and working conditions

39. Collective Bargaining • An agreement negotiated between a labor union and an employer re terms of employment: • Wages • Vacation time • Working hours • Working conditions • Health insurance • Collective=agreements cover a defined population and are not individualized • Collective bargaining by nurses is to secure reasonable and satisfactory conditions of employment including the right to participate in decision making regarding their practice and are directly correlated with quality of care

40. Collective bargaining is seen as a way to balance power and removes the fear of arbitrary discipline and dismissal-due process must be followed • A labor contract is unrelated to being professional • A non-collective bargaining environment may be supportive of nursing practice and provide ways for input into decisions regarding care and the environment in which care occurs • A contract requires negotiation of these things within a legally binding framework

41. Grievance and Arbitration (Chapter XIV: Federal Labor Relations Authority • A negotiated grievance procedure =a system for resolving disputes • Identifies where problems exist • Solves the problems • A grievance is defined in the agreement (contract) and may cover complaints: • By employees re any matter relating to the employment • By labor organizations concerning any matter relating to the employment of employees • By employees, labor organization or agency concerning: effect, interpretation or claim of breach of an agreement; any claimed violation, misinterpretation or misapplication of any law, rule or regulation affecting conditions of employment

42. Unions have rights to present and process employee or union grievances • Employees may represent themselves but union has the right to be present even if employee doesn’t want their help • Arbitration-implemented by union or management when grievance can’t be resolved • Def=an impartial 3rd party is chosen by union and management to decide a final and binding award after hearing and reviewing the case • Expensive, time and emotion consuming, unpredictable results ( • Decision may be appealed within 30 days to Federal Labor Relations Authority (did arbitrator violate law, rule, regulation or authority) or decision is binding • Refusal to adhere to decision/award is an unfair labor practice

43. National Labor Relations Act (NLRA) • Known as the Wagner Act (1935)= primary law governing relations between unions and employers in private sector • Protects workers from unfair labor practices • Requires employers to recognize and bargain with a union the employees elect to represent them • Guarantees employees “right to self-organization to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in activities for the purpose of collective bargaining or other mutual aid and protection” • Enacted to stop strikes, takeovers and violence in early 1930’s (factories)

44. 1945-35% workforce was unionized • 1947-Taft-Hartley Act amended NLRA to weaken it and the unions’ power • Placed curbs on some union activities • Excluded employees of non-for-profit hospitals • 1974-Taft Hartley amended and removed exemption of hospitals; employees have same rights as industrial workers • Frenzy to organize healthcare related to fact that that’s where new potential members (power and money are)

45. National Labor Relations Board (NLRB) • an independent federal agency to administer the NLRA • Five members with staggered terms , appointed by the President and approved by the Senate • 450 volumes of decisions • Regional offices exist near almost every Circuit Court . his

46. 1959-Landrum-Griffin Act • Known as the Labor-Management Reporting and Disclosure Act and resulted in Senate hearings re. improper activities in labor and management-evidence of collusion between unions and employers, violence, diversion of union funds • Grants rights to union members to protect interests by democratic procedures within the labor organizations (secret elections) • All hospitals are now subject to Federal Labor Relations Act • Organized facilities must carefully attend the NLRA provisions even if nonunion facilities don’t have much day- to day worries

47. Organization of Nurses and Other Healthcare Workers • Healthcare facilities have many potential members at a time all dwindling union membership • Healthcare systems are broken and thus are vulnerable • Technology replacing unskilled workers

48. Unions Representing Nurses in the United States • 1199 League of Registered Nurses • American Federation of State, County And Municipal Employees AFL-CIO • American Federation of Teachers • National Education Association • Service Employees International Union • Teamsters International Union • Others

49. American Nurses Association • 1946 ANA established its Economic and General Welfare (EG & W) Program to improve working conditions for nurses • State associations as constituents of ANA serves as a bargaining agent in some states • CA and MA-split from ANA; 2 associations exist in each state-1 as union, the other as professional association

50. United American Nurses, AFL-CIO (UAN) • an affiliate of both the American Nurses Association and the AFL-CIO • Began in 2001 • 102,000 direct care nurses • 27 affiliated state nurses associations. • focused on RNs and the unique issues important to staff nurses • staff nurses set the standard for RNs in organizing, collective bargaining and contracts