Author: Scott Moore

Scott A. Moore, Esq. has been in the emergency medical services field for over 26 years. Scott has held various executive positions at several ambulance services in Massachusetts. Scott is a licensed attorney, specializing in Human Resource, employment and labor law, employee benefits, and corporate compliance matters. Scott has a certification as a Professional in Human Resources (PHR) and was the Co-Chair of the Education Committee for the American Ambulance Association (AAA) for several years. In addition, Scott is a Site Reviewer for the Commission on the Accreditation of Ambulance Services (CAAS). Scott earned his Bachelor’s Degree in Psychology from Salem State College and his Juris Doctor from Suffolk University Law School. Scott maintains his EMT and still works actively in the field as a call-firefighter/EMT in his hometown. Scott is a member of the American Bar Association, the Massachusetts Bar Association, the Society for Human Resource Management, and the Northeast Human Resource Association.

4/15 | End Annual Reviews: Stop Ignoring Your Staff 364 Days a Year

 

End Annual Reviews: Stop Ignoring Your Staff 364 Days a Year
Speaker: Scott Moore, Esq.
April 15, 2021 | 15:00 ET | Free to AAA members!

Have you ever received a performance review that truly drove you to work harder? It is time for employers to rethink the manner and method of providing employee performance feedback. In fact, the concept of performance feedback needs to evolve from a formal annual process to a more fluid ongoing dialogue about the nature and quality of the workplace relationship. EMS organizations continue to struggle with retaining employees, both field personnel and frontline supervisors. This program will discuss why traditional employee performance feedback models often hurt performance. We will cover the latest research on what truly drives employee performance and the innovative ways that high-performance teams are utilizing meaningful performance feedback tools in today’s workplace. Lastly, this session will discuss the important role that organizational culture plays in driving employee performance regardless of the performance feedback model your organization adopts. No matter the model, if your organizational culture does not support a transparent, trusting, and accountable relationship between leadership and your workforce, you will continue to struggle.

Register Now

4/15 | End Annual Reviews: Stop Ignoring Your Staff 364 Days a Year

 

End Annual Reviews: Stop Ignoring Your Staff 364 Days a Year
Speaker: Scott Moore, Esq.
April 15, 2021 | 15:00 ET | Free to AAA members!

Have you ever received a performance review that truly drove you to work harder? It is time for employers to rethink the manner and method of providing employee performance feedback. In fact, the concept of performance feedback needs to evolve from a formal annual process to a more fluid ongoing dialogue about the nature and quality of the workplace relationship. EMS organizations continue to struggle with retaining employees, both field personnel and frontline supervisors. This program will discuss why traditional employee performance feedback models often hurt performance. We will cover the latest research on what truly drives employee performance and the innovative ways that high-performance teams are utilizing meaningful performance feedback tools in today’s workplace. Lastly, this session will discuss the important role that organizational culture plays in driving employee performance regardless of the performance feedback model your organization adopts. No matter the model, if your organizational culture does not support a transparent, trusting, and accountable relationship between leadership and your workforce, you will continue to struggle.

Register Now

EMS Industry Targeted in Program Implemented by OSHA to Protect Employees from COVID

One of the first actions taken by the Biden Administration the day after the Inauguration was to issue an Executive Order directing OSHA to focus their efforts on protecting the American workforce. Following that Executive Order, OSHA has implemented a National Emphasis Program (NEP) to ensure that employees in high-hazard industries, including EMS providers, are protected from contracting COVID-19. The NEP is intended to augment OSHA’s educational and enforcement efforts with unprogrammed, COVID-19 related activities, including complaints, referrals, and severe incident reports. The March 12, 2021 announcement also states that it is updating the Interim Enforcement Response Plan to prioritize on-site workplace inspections. The NEP also includes plans to ensure that workers are protected from retaliation. Lastly, states that have an OSHA-approved state-level plan, have 60 days to notify OSHA if they already have the equivalent to an NEP plan or will adopt the federal plan.

What does this mean for EMS providers? 

This should serve as an alert to EMS agencies that they should revisit their safety and risk programs, including their Respiratory Protection Programs, to ensure that they are prepared for a visit from OSHA.

Respiratory Protection Programs

At many EMS agencies, this is part of the bloodborne and airborne protection policies that have been in place for decades.  I caution agencies to review their existing plan against OSHA’s Respiratory Protection Regulations.  Under the regulations, all individuals who are mandated to wear an N95 or other respirator must complete a medical questionnaire that is reviewed by a physician or other healthcare provider prior to the employee having to donning the mask while working.

The regulation provides elements of a Respiratory Protection Program that includes identifying a Respiratory Program Administrator (RPA) that is designated by a Medical Director who will be responsible for developing, maintaining, and ensuring compliance with policies, procedures, and practices relative to the selection, storage, use, and maintenance of respirators.  Additionally, the RPA is responsible for conducting or coordinating all training, fit testing, and recordkeeping required by the regulations.

OSHA has published a Small Entity Compliance Guide for the Respiratory Protection Standard.  This is a 124-page document that outlines the Respiratory Protection Standards and provides sample templates and checklists that can be utilized by employers to assist with compliance.  Like with patient care documentation, be sure that your Respiratory Protection Program documentation is sufficiently detailed and includes:

  • A written copy of all current, and past Respiratory Protection Program documentation (P&Ps, etc.)
  • The name of all current and past RPAs
  • All medical determinations (Fit Testing Medical Questionnaire reviewed by MD)
  • All Fit Testing records
  • All Respiratory Protection Program training records
  • Personal Protection Equipment Hazard Assessments
  • All Risk Assessments post employee exposure (Unprotected Exposure Investigation Forms)
  • All exposure control records
  • Documentation demonstrating the method utilized to communicate safety related information to employees.

What do I do if I receive a call from OSHA?

It is unnerving to receive a phone call from a local, state, or federal oversight agency.  However, contact from an oversight agency does not always mean that they have received a complaint.  All U.S. Department of Labor agencies perform outreach in the various regions to educate and engage employers and different industry groups.

That being said, the U.S. DOL is a busy agency, especially during the pandemic.  Most likely, if your organization is being contacted by OSHA, it is due to a complaint, referral, or data targeting run.  The first two are self-explanatory.  A data targeting run is the identification of a specific employer through analysis of data submitted to the agency.  This is typically information such as electronically submitted workplace injury and illness data.

If you receive a call from OSHA, my recommendation is to listen more than you speak. Take copious notes and document the conversation immediately following the call.  The OSHA representative will tell you why they are calling and will likely request various documents or other evidence be sent to their office. Do not expect that they will tell you who complained, and I would not ask.  My suggestion, request that the representative email or fax over a letter identifying the representative, the documents or other information they are seeking, the date that you must furnish the information, and the method upon which they want the information sent.

You may not have firsthand knowledge of the issue or incident that led to the complaint to OSHA. That is okay. You can tell the representative that you and your team will investigate and/or compile the requested information following the call and respond. The investigator does not expect that you will necessarily have all the answers at the time of the call. You should be courteous and responsive but remember that a response that is carefully considered and crafted is likely to lead to the best result.  Do not wing it!  Lastly, no matter whether you know who complained or not, do not take any action that can be viewed as retaliatory against employees.

What do I do if an OSHA Investigator appears at my workplace?

Generally speaking, an OSHA Investigator will not just appear in your workplace.  Not to say that they cannot.  They certainly can.  If an OSHA Investigator comes to your workplace you do have certain rights, but so does OSHA.  OSHA has the right to arrive unannounced, gain access to the workplace without significant delay, and question employees privately.  They will show you their OSHA credentials and you should ask for a business card.

An employer has the right to demand to see an inspection warrant.  This is the document that is the basis for OSHA’s probable cause for the inspection.  However, I do not recommend demanding the inspection warrant.  This will most certainly put you and the OSHA investigator in an adversarial position.  As they say, this can go one of two ways, hard or less hard.

An employer has the right to an opening conference. Many important things can happen during the opening conference. First, you can learn the nature of the complaint and related investigation and attempt keep the scope of the investigation as narrow as possible. Next, you can establish the probable cause for the visit and learn their plans for the investigation.  This will likely include a worksite “walking around” inspection, interviews, document review, etc.  You can better prepare once you know what to expect.

An employer has the right to accompany the OSHA Investigator during their site inspection.  I recommend taking photos of anything that the investigator documents or inspects and documenting physical evidence or documents that they take during the inspection.  You may also ask the investigator for a log of any evidence taken.  Lastly, you should know that the investigator has the right to interview your employees privately.  However, you have the right to be present during any management interview.

Bottom line, you should cooperate with the investigator. They are people too and generally want to help employers be complaint with the law.  They are not looking to find violations. They are looking to ensure compliance and protect workers. From my time working at the U.S. DOL, I can attest that we appreciated cooperative and friendly employers who know the law and can quickly provide the information or documents we are seeking.  The quicker and more responsive I found an employer to be, the greater likelihood my index of suspicion reduced, and that the employer was following the law.

Conclusion

OHSA has identified that the NEP will be in place for the next twelve (12) months.  NEP plans are intended to be temporary but can be extended if the pandemic continues past the anniversary of the plan.   While there were numerous industries listed in the OSHA notice, ambulance service providers were specifically identified as one of the high-risk industries that would be the focus of this new program.

If your service has questions or needs assistance with ensuring that your organization is compliant, be sure to contact hello@ambulance.org for assistance.

Webinar 5/13 | Challenges for EMS Employers in a Time of Legalized Marijuana

Canna-Business Decisions: Challenges for EMS Employers in a Time of Legalized Marijuana

Regular Price: $250.00 | Member Price: $0.00
May 13, 2021 | 14:00 | Free to Members

Speakers: Scott Moore, Esq. & Margaret Keavney, Esq.

There has been a wave across the U.S. of legislation that has legalized medicinal and recreational marijuana. This wave has caused considerable challenges for EMS employers given the nature of the work performed by the EMS workforce. In many instances, the state law prohibits an employer from discriminating or taking other disciplinary action against workers for their off-duty marijuana use. Many EMS employers are federal contractors or grantees and must abide by the Drug Free Workplace Act of 1988. However, due to the newness of legalized marijuana, the application of the state and federal law has not played out in the courts allowing employers to understand how to ensure compliance with laws that appear to contradict each other. EMS attorneys, Margaret Keavney of Keavney & Streger, LLC and Scott Moore, AAA HR and Operations Consultant will host a point-counterpoint town meeting where they will discuss the intersection of current law and will provide recommendations for EMS leaders to ensure that they are providing a safe working environment for both employees and patients.

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EEOC Releases Fiscal Year 2020 Enforcement and Litigation Data

Last week, the Equal Employment Opportunity Commission (EEOC) release the 2020 Summary of Enforcement and Litigation Data.  As we all recognize, last year was an unbelievably difficult time for both employers and employees nationwide.  Despite this, the agency saw a reduction in the total number of charges handled by the agency from 2019.

The report, which was released on February 26, 2021, showed that the agency received 67,448 charges of workplace discrimination over the course of Fiscal Year (FY) 2020 which ended on September 30, 2020. The agency secured $439.2 million for victims of discrimination in the private sector, state, and local government workplaces through voluntary resolutions and litigation.

The agency responded to over 470,000 calls to its toll-free number and more than 187,000 inquiries in field offices, including 122,775 inquiries through the online intake and appointment scheduling system. The FY 2020 data show that retaliation remained the most frequently cited claim in charges filed with the agency, accounting for the majority of all charges filed.  This is typically because retaliation is a secondary claim to a claim of discrimination handled by the agency.

Other charge statistics showed that disability, race, and sex-based discrimination were topping the list of most frequently filed claims. Below is a summary of all charge data:

  • Retaliation: 37,632 (55.8 percent of all charges filed)
  • Disability: 24,324 (36.1 percent)
  • Race: 22,064 (32.7 percent)
  • Sex: 21,398 (31.7 percent)
  • Age: 14,183 (21.0 percent)
  • National Origin: 6,377 (9.5 percent)
  • Color: 3,562 (5.3 percent)
  • Religion: 2,404 (3.6 percent)
  • Equal Pay Act: 980 (1.5 percent)
  • Genetic Information: 440 (0.7 percent)

This report shows that employer need to continue to regularly communicate company policies which foster a civil and inclusive work environment and that prohibit discrimination or harassment of any form in the workplace.  Additionally, it is important that all harassment policies clearly state how employees subject to, or witnesses to, harassment or discrimination can report complaints.  An important update to the American Ambulance Association’s Human Resources Manual is the addition of language encouraging bystander intervention and reporting.  The bottom line, when unacceptable behavior is not given the oxygen to survive in a workplace, there will be less of it.

If your organization needs assistance or has questions about the best practices regarding promoting a civil and inclusive work environment, please contact the AAA at hello@ambulance.org for assistance.

Updated CDC Guidance for Fully Vaccinated Individuals

This past week, the Centers for Disease Control (CDC) updated their guidance related to the COVID-19 vaccination. The guidance modifies the quarantine restrictions for fully vaccinated individuals who were exposed to COVID-19. The guidance is a small sign of progress for many EMS organizations who have been on the frontlines of the pandemic.

Under the most recent guidance, those individuals who are fully vaccinated (defined as those who are two weeks following the second dose administration), are within three months following the last dose in the series and have remained asymptomatic since the current COVID-19 exposure, are not required to quarantine. Individuals who do not meet all three criteria, must follow the current quarantine guidance. The guidance recommends that individuals who meet all three criteria should continue to monitor for COVID-19 related symptoms for two weeks following the exposure. If symptoms develop, individuals should be tested.

Many EMS organizations have inquired if the administration of the COVID-19 vaccination to their workforce modifies the state-level mask mandates or other bloodborne/airborne pathogen protection practices or procedures that are currently in place at EMS organizations or other healthcare facilities.  While the roll-out of the vaccination is a step in the direction of returning to a “new normal”, employers should know that this does not modify any existing COVID-19 related restrictions or requirements.  Employees should continue to wear masks, socially distance, and follow all other COVID-19 recommended safety precautions.

We will keep you informed of updates to the guidance by the CDC and other regulatory agencies.  Be sure to visit the CDC’s website for more information on the current CDC guidance for COVID-19 or the COVID-19 vaccination.  As always, if you have questions or need assistance, contact the AAA at hello@ambulance.org.

OSHA | Submit Data to the Injury Tracking Application

The Occupational Safety and Health Administration (OSHA) announced that it has opened the electronic Injury Tracking Application (ITA), where all employers are required to submit 2020 Injury and Illness Data.  All EMS employers are required to report their yearly Form 300A Summary of Work-Related Injuries & Illnesses.  The Form 300A Summary of Work-Related Injuries & Illnesses is the document that must also be posted in all employer work locations from February 1st through April 30th each year.  For those who have not electronically reported your injury and illness data to OSHA through the Injury Tracking Application (ITA) previously, you will need to establish a user name for your organization in order to electronically report your data.  The deadline for electronically reporting your injury and illness data is March 2, 2021.

We know that this has been an unusually busy work-related illness year for many EMS agencies due to the COVID-19 pandemic.  If you have questions or require assistance to ensure that you accurately report your work-related injury and illness data to OSHA, be sure to contact the AAA and its consultants for assistance.

NEW DATE | Wrapping Up a Year for the Record Books

NEW DATE: December 22, 2020 | 2:00pm EST
Presented by Scott Moore, Esq.
FREE to AAA Members | $99.00 for Non-Members

2020 was a year unlike any in recent history. There were no dull moments courtesy of the global pandemic, civil unrest, and an historical Presidential campaign and election. The information and regulatory guidance were being released at head-spinning pace leaving many EMS leaders unsure if they captured all of the available COVID-19 related relief opportunities and worried that they may miss important relief-related reporting deadlines. This webinar will provide a review of the year many of us would like to forget. We will discuss how EMS agencies rose to the challenge and played a critical role in responding to the pandemic in the socially and politically charged national environment. Additionally, we will provide attendees of a preview of the road ahead, including the required reporting to ensure EMS agencies are compliant.

Register Now

Requiring Vaccinations in EMS

Can we require our employees to get an Influenza vaccination or a COVID-19 vaccination once one becomes available?

This question has been looming for EMS providers around the country as we enter the Flu season in the face of an existing global pandemic.  While the COVID-19 vaccine is still being developed and approved, it is anticipated that one will be available later this year or early in 2021.  Of course, the Flu vaccine is available now and the CDC suggests it is more important than ever that individuals get vaccinated than in prior years due to the pandemic.

The short answer to the mandatory vaccination requirement is likely, yes.  However, the right of employers to require vaccinations is not unrestricted.  Additionally, mandatory vaccination programs can be unpopular with employees and employers should be prepared for push-back from some of their workforce.  We know that there is a segment of the population who are anti-vaxers or who, according to a recent Gallup survey, stated that they would not get a new COVID-19 vaccination.

As with many things in the employment law context, employers must develop a comprehensive approach to instituting a mandatory vaccination requirement for their workplace and workforce.  EMS leaders should consult with the public health and legal professionals in their jurisdiction for guidance.

 Workplace Safety

EMS employees, as healthcare providers, are at a greater risk of exposure than employees in other professions.  As such, it is critical that EMS employers have a comprehensive workplace safety program, including vaccinating employees against illnesses such as the Flu and COVID-19.  This is consistent with the recommendations of the Occupational Safety & Health Administration (OSHA) that all healthcare providers are vaccinated against illnesses such as influenza.  As the availability of a COVID-19 vaccination nears, there are several criteria that EMS leaders should consider as they develop their workforce vaccination plan.

An important consideration is understanding and articulating the objective reasons that your organization is instituting a workplace vaccination plan.  One important step is evaluating the various job positions at the company and documenting the position-based criteria that objectively justify requiring vaccination.  The key is that the vaccination be job-related and consistent with business necessity.

Additionally, ensure that your occupational workplace safety policies establish the process and procedure for an employee to request an exception from mandatory vaccination and the process for evaluating the request.  This information should be kept as confidential, consistent all other employee medical information.  Lastly, the policy must include anti-retaliation protections, including a prospective plan for monitoring related workplace actions.

  Legal Considerations

Under the law, employers can require all employees to be vaccinated against the Flu or COVID-19 but there are a few limitations.  These limitations include employees who are protected under the Americans with Disabilities Act (ADA) or the religious protections afforded to employees under Title VII of the Civil Rights Act (Title VII).  The Equal Employment Opportunity Commission, who enforces both Title VII and the ADA has issued guidance on this topic in 2009 which was recently updated to reflect the current guidance in light of the COVID-19 pandemic.

 ADA Medical Conditions

First, employees who have an ADA protected disability may be able to decline vaccination as a reasonable accommodation provided that it doesn’t create an undue hardship or constitute a direct threat to others.  Under the ADA, an undue hardship is one that involves great difficulty or expense.  A direct threat is “a significant risk of substantial harm to the health and safety of the employee or others”.  Upon learning that an employee is seeking an exclusion from the mandatory vaccination, the employer needs to engage the employee in the interactive process to determine if there is a reasonable accommodation that it can provide that meets the employer’s legal obligation to provide safe workplace.

The EEOC’s guidance, which was updated recently due to the COVID-19 pandemic, addresses the direct threat standard.  In the guidance, the EEOC states that the assessments by both the CDC and other public health authorities determine that the COVID-19 pandemic meets the direct threat standard under both the ADA and Title VII.  However, this does not eliminate or excuse the employer’s obligation to take each request on a case-by-case basis.  It is important that your human resources professionals are involved in all employer activity related to instituting and applying a mandatory vaccination program.

 Religious Accommodations

Under Title VII, an employee may be able to decline a mandatory vaccination program on the basis that it is inconsistent with their protected religious principles.  Similar to the ADA, an employer is obligated to engage employees, requesting exemptions from a mandatory vaccination program, in the interactive process to determine if there is a reasonable accommodation that can be afforded to the employee.  Unlike the ADA, the undue hardship standard under Title VII is substantially lower and involves “more than a de minimis cost”, or would constitute a direct threat to others.

The important take-away for employers is recognizing that the organization must have a clearly defined policy, that is communicated meaningfully, and is consistently applied.  The policy must clearly state the organizational reasons that the policy is being adopted and the harms the policy seeks to prevent.  Also, that there is a clearly defined process for requesting an exemption and that all requests are handled in a consistent manner.  Further employees must be engaged in the interactive process, and all related aspects documented sufficiently.  This includes the final decision regarding any requested exemption from the vaccination program.  It is strongly recommended that all aspects of this process are maintained in a log to ensure the consistent and comprehensive handling of these requests.  Failure to maintain a log often leads to inconsistent results and opens the employers up to substantial liability.

 Political Protections

In some states, like California and New York, employees may not be discriminated against due to their external lawful political activities.  While this is unlikely to be the basis for an employee’s declination of participation in an occupational vaccination program, some anti-vaxers view this as a political position.  Employers in these states should consult legal advice by a licensed attorney in their state who specializes in employment law.

 Funding Vaccinations

Employers who are instituting a mandatory vaccination program should fund this program and provide the vaccination at no cost to the employee.  Many employers often look to their employer sponsored health plan to cover the costs of vaccination.  Employers should be aware of any cost sharing or deductible amounts that the employee may be responsible for and offer to cover that cost.

Additionally, many employers have contracted with outside vendors, or have worked with their healthcare partners, to provide employee vaccinations on-site.  This will ensure that all barriers to employees receiving vaccinations are removed.

 Summing It Up

Employers have been wrestling with occupational vaccination programs for years as the various global pandemics, such as SARS and H1N1.  In past years, many employers have taken a passive role regarding vaccinations by merely recommending employee vaccinations.  While sounding quite cliché, we are in an unprecedented time and employers can no longer take a passive role regarding employee vaccination programs.  This is not our typical Flu season and the impacts of this year’s Flu will likely be accentuated due to the COVID-19 pandemic.  We can expect a COVID-19 vaccine in the coming months and EMS employers should be prepared for the issues that will most certainly arise.

As always, be sure to contact us for assistance with this and any other challenge your organization encounters.