Health Care Articles by Kathleen M. Connelly

Emergency room visits and hospital admissions for COVID-19 are down more than 75%, and deaths are down by more than 90%, from the peak of the Omicron wave in January 2022.  As the COVID epidemic moves farther into the horizon, the Centers for Disease Control and Prevention (CDC) has modified its guidance for the period of isolation that must be observed by individuals testing positive for COVID-19.

At the onset of the COVID epidemic in 2020 the CDC issued its isolation guidance calling for 10 days of isolation for persons testing positive for COVID-19, which was reduced to 5 days in 2021.   On Friday, March 1, 2024, the CDC issued revised guidance which now says individuals testing positive can return to work and other normal activities if i) the COVID symptoms are improving, and ii) the individual has been fever-free for at least 24-hours without medication.  However, the new guidance does not apply to healthcare setting.

In his announcement of the new isolation rules, CDC Director Mandy Cohen stated that the CDC’s revision “reflects the progress we have made in protecting against severe illness form COVID-19.”  The CDC also pointed to a recent survey indicating that less than 50% of people with cold or cough symptoms would take an  at home test for COVID 19, and less than 10% indicated that they would get tested by a pharmacy or healthcare provider.  According to Georges Benjamin, Executive Director of the American Public Health Association, the CDC’s new position is more realistic than asking individuals to isolate for 5 days.

Clarifying the burden placed upon health care workers alleging New Jersey Conscientious Employee Protection Act (CEPA) violations, the New Jersey Supreme Court’s recent decision in 218 N.J. 8 (2014) illustrates the barriers facing employees who point to alleged violations of codes of ethics or employer policies to support whistleblowing claims.

The Facts: Registered Nurse James Hitesman served as shift supervisor for a nursing home operated by Bridgeway, Inc. (“Bridgeway”). In 2008, Hitesman e-mailed Bridgeway management expressing concerns that seasonal respiratory and GI symptoms were rising at an alarming rate at the nursing home. Unsatisfied with Bridgeway’s response to his concerns, Hitesman reported the increase in infections to governmental agencies and the media. In his communications with the media, however, Hitesman provided partially redacted copies of Bridgeway administrative logs that nevertheless disclosed information that could lead to the identification of patients. Bridgeway ultimately terminated Hitesman for his disclosure of patient information to the media in violation of the facility’s confidentiality policy and the Health Insurance Portability and Accountability Act (HIPAA).

Hitesman filed suit alleging that his discharge violated CEPA’s prohibition of retaliatory action against a health care employee who reports on, or objects to, employer activity that the employee reasonably believes constitutes “improper quality of patient care” or is “incompatible with a clear mandate of public policy concerning the public health.” Hitesman pointed out that “improper quality of patient care” is defined by statute as a violation of “any law, or any rule, regulation or declaratory ruling adopted pursuant to law or professional code of ethics.” To support his claim of a reasonable belief that Bridgeway’s infectious disease practices constituted improper quality of patient care, Hitesman relied upon the American Nursing Association’s Code of Ethics that obligated him to improve patient care, as well as Bridgeway’s Internal Code of Conduct and its Statement of Resident Rights as the governing standard for assessing Bridgeway’s misconduct.

Employment Law Newsletter

Although many domestic workers are covered by the Fair Labor Standard Act’s (FLSA) minimum wage and overtime requirements, there presently exists an exemption from these requirements for home health care workers providing “companionship services for individuals who are unable to care for themselves.” In 2007, the United States Supreme Court ruled that home healthcare providers employed by third-party agencies were entitled to this exemption, resulting in significant wage and overtime savings to these agencies.

On December 15, 2011, the U.S. Department of Labor (DOL) announced proposed regulations aimed at closing the exemption to caretakers employed by third-party agencies. The highlights of the proposed regulations include: