The California End-of-Life Option Act

Among the rapidly evolving areas of health law are the legal, medical, and ethical issues relating to death and dying. California is now the fifth state to authorize medical aid-in-dying. This raises the thorny and inevitable question as to whether your institution, facility or agency will participate or not participate in the activities authorized under the End of Life Option Act [the “Act”] signed by Governor Jerry Brown, on October 5, 2015. (Cal. Health & Safety Code, § 443, et seq.) The Act permits a competent, qualified individual who is an adult with a terminal disease to receive a prescription for an aid-in-dying drug if certain conditions are met. These conditions include two oral requests, a minimum of 15 days apart, and a written request signed by two witnesses. These requests must be provided to his or her attending physician who then refers the patient to a consulting physician to confirm diagnosis and capacity to make medical decisions. The attending physicians refers the patient to mental health specialists, if indicated.

 

Source for News notes: The California End-of-Life Option Act: To Participate or Not to Participate by Larry T. Pleiss, Shareholder at Wroten & Associates.


Mandatory Sick Leave

Many employers who offer holiday pay have written policies that state holiday pay will not be granted if an employee calls in sick the day before or after a holiday. Presumably the intent is to discourage employees from calling in sick as a means of lengthening a holiday weekend. Unfortunately, it is likely such a provision would be seen as resulting in retaliation against the employee for using protected sick leave since using the sick leave results in loss of holiday pay. It’s important to strike any similar language from written policies.

Source for Employment notes: California’s Mandatory Sick Leave, by Laura K. Sitar, Shareholder at Wroten & Associates.


In the News – Employment 04/04/16

The California Healthy Workplaces, Healthy Families Act of 2014 requires all California employers to provide the greater of three days or twenty-four hours of paid sick days annually to all eligible employees beginning July 1, 2015. A detailed description of the law with questions and answers is available on the California Department of Industrial Relations website at http://www.dir.ca.gov/dlse/Paid_Sick_Leave.htm Eight months after California employees rolled out their new compliant sick leave or Paid Time Off (PTO) policies, one simple requirement of the act deserves special attention. The law prohibits retaliation against employees for exercising their right to use protected sick leave. Given the frequency retaliation claims are filed in California, it’s important that employers evaluate their sick leave policies and procedures to avoid inadvertent retaliation.

Source for Employment notes: California’s Mandatory Sick Leave, by Laura K. Sitar, Shareholder at Wroten & Associates.


In the News – 03/01/2016

Direct care staff (defined as staff members of residential care facilities for the elderly who assist residents with personal activities of daily living as well as CNAs, RNs, and LPNs) must now receive 40 hours of training before working independently with residents, and an additional 12 hours annually for in-servicing. The training must include topics related to physical limitations and the needs of the elderly, techniques for personal care, Residents’ rights, policies and procedures regarding medications, psychological needs of the elderly, building safety, the use and misuse of antipsychotics, special needs for residents with dementia and Alzheimer’s as well as cultural competency and sensitivity. This is a huge increase in training requirements as prior to January 1, 2016, direct care staff are only required to receive 10 hours of training within the first four weeks of employment, meaning on-the-job training. Further, required training hour topics have not previously included the use and misuse of antipsychotics, special needs for residents with dementia and Alzheimer’s as well as cultural competency and sensitivity.

Source of Update notes: Training Requirements by: Lora A. Ajello, Senior Attorney at Wroten & Associates

 


In the News – 02/22/16

All RCFE caregivers must receive dementia care training, regardless if the RCFE promotes or advertises a memory care unit or any special programs related to the residents with dementia. This training is in addition to the increased requirements laid out in section 1569.625. As of January 1, section 1569.626 now requires 12 hours of dementia care training, six of which must be completed prior to the staff member being able to work independently with residents and the remaining six hours must be completed within the first four weeks of employment. The Code is very clear: beginning on January 1, 2016, all 12 hours must be devoted to the care of persons with dementia. In-servicing relating to dementia care likewise must be performed annual for at least eight hours. In-service training must “be developed in consultation with individuals or organizations with specific expertise in dementia care or by an outside source with expertise in dementia care.”

Source of Update notes: Training Requirements by: Lora A. Ajello, Senior Attorney at Wroten & Associates


Employment News – 02/16/16

Labor Code § 226 requires accurate itemized pay statements showing:

  • Gross wages earned,
  • Total hours worked by the employee,
  • The number of piece rate units earned and any applicable piece rate if the employee is paid on a piece rate basis,
  • All deductions, provided that all deductions made on written orders of the employee, may be aggregated and shown as one item,
  • Net wages earned,
  • Dates inclusive of the period for which the employee is paid,
  • Name of the employee and only the last four digits of his or her social security number or an employee identification number other that a social security number,
  • Name and address of the legal entity that is the employer, and
  • Applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.

Source for Employment notes: Window of Opportunity for Employers: AB 1506 by: Laura K. Sitar, Shareholder at Wroten & Associates.

 


Employment News – 02/10/16

AB 1506 now provides employers with 30 days to cure select missing information, specifically (6) missing inclusive dates of the period for which the employee is paid and (8) the names and address of the legal entity that is the employer. Before filing a civil action the employee must give written notice of the violation by certified mail to the Labor and Workforce Development Agency and the employer, including facts and theories to support the alleged violation.  Employers should pay attention to any correspondence served by certified mail addressed to the Labor and Workforce Development Agency and the employer identifying Labor Code violations. The cure provisions require providing compliant wage statements to all employees for the past three years, which may sound onerous, but is certain to be less costly than the penalties and attorneys fees available if the violation is not cured.

Source for Employment notes: Window of Opportunity for Employers: AB 1506 by: Laura K. Sitar, Shareholder at Wroten & Associates.


In the News – 02/09/2016

AB 1570 and SB 911 have now amended Health and Safety Code section 1569.23 and section 1569.625 to require the certification program for a prospective Administrator to consist of 100 hours of course work and a state-administered exam of no less than 100 questions. The current law requires an Administrator of an RCFE to successfully complete a department approved certification program prior to employment that requires, among other things, a minimum of 40 hours of classroom instruction on a uniform core of knowledge. Starting on January 1, 2016, the minimum hours of classroom instruction for Administrators jumps to 80 hours, including 60 hours of in-person instruction, and would add additional topics to the uniform core of knowledge, including the adverse effects of psychotropic drugs for use in controlling the behavior of persons with dementia.

Source of Update notes: Training Requirements by: Lora Ajello, Senior Attorney at Wroten & Associates

 


Claims of negligent hiring

Claims of negligent hiring are waiting in the wings for employers who fail to conduct reference checks on prospective employees.  The following are tips for conducting effective reference checks:

  1. Contact the candidate’s former supervisors, not the human resources department of personal references.
  2. Identify who you are and the nature of the position sought. Ask:
  3. What was the individual’s start and end date?
  4. What was the individual’s final pay rate?
  5. Why did the individual resign?
  6. Why was the individual fired?
  7. How was the individual’s attendance?
  8. Was the individual ever disciplined for abuse?
  9. Is there anything else I should know about this individual?
  10. Don’t give up.  Keep calling.
  11. Document all of your efforts including an employer’s refusal to provide a reference.

Source for Employment notes: Reference Checks by: Laura K. Sitar, Shareholder at Wroten & Associates.


Reference Checks

An employer is immune from liability for defamation, as long as the employer provides the information to a prospective employer who requests it and acts without malice. California Civil Code section 47(c) specifically states that this protection extends to statements about job performance, qualifications, and eligibility for rehire. An employer is protected if its statements are based on credible evidence and made without malice.

Source for Employment notes: Reference Checks by: Laura K. Sitar, Shareholder at Wroten & Associates.