Management Update
Proposed Bill Would Prohibit the Use of Non-Compete Agreements with Certain Physicians
By: Jerry L. "Jay" Stovall, Jr.

Senator Jay Morris has proposed a Bill that will significantly limit the use of employment-related agreements that limit a primary care physician’s ability to practice medicine. Senate Bill 385 would prohibit the use of any employment contract or agreement to restrict the practice of medicine by a licensed primary care physician, except for certain limited situations. 

For example, employers could only enforce a non-compete provision against a primary care physician whose was terminated for “just cause.”  In addition, such a non-compete provision could only restrict the physician from competing for a maximum of one year from the termination of his or her employment contract or agreement. (The current maximum period is two years.) 

The geographic area in which the physician could not compete would be limited to the parish in which his/her office was physically located and one contiguous parish. 

Any agreement in violation of the new statute would be null and void.

If you employ primary care physicians, and if you utilize non-compete language in your employment agreements, you need to follow the progress of this Bill.
Jobs Versus Jabs: The Current State of Vaccine Mandates for Healthcare Employers
By: Matthew M. McCluer

Recently published in Healthcare Journal of New Orleans. Read here.
President Biden Signs Law Limiting Arbitration Agreements for Sexual Harassment
By: Jerry L. "Jay" Stovall, Jr.

As covered in a recent update, the Senate passed a bill that would severely limit the use of forced arbitration agreements and class action waivers covering allegations of sexual harassment. Well, President Biden signed the Bill into law on March 3, 2022.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 is now law. The Act amends the Federal Arbitration Act by adding a new section:

[A]t the election of the person alleging conduct constituting a sexual harassment dispute or a sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no pre-dispute arbitration agreement or pre-dispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

The Act allows employees to void portions of arbitration agreements requiring them to arbitrate sex assault/harassment claims

The Act does not affect agreements to arbitrate claims other than sex harassment/assault.

The Act applies to all claims arising after March 3, 2022, the day that it was signed by President Biden.

Bottom line: If you have agreements requiring your employees to submit issues to binding arbitration rather than suing you, the Act only applies to them to the extent that they require the arbitration of sexual harassment and sexual assault claims. If you were thinking of implementing an arbitration agreement to avoid employment-related class actions, among other things, you can still do so – just not sex assault/harassment claims.
The CDC Has Relaxed It's Face Covering Recommendations, And This Should Matter to You
By: Jerry L. "Jay" Stovall, Jr.

As discussed in prior updates, when OSHA withdrew its Emergency Temporary Rule requiring large employers to vaccinate or test their employees, it indicated that it was going to ensure that workplaces were COVID – safe by using the General Duty Clause. The General Duty Clause requires employers to provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” COVID is a recognized hazard that is causing or likely to cause death or serious physical harm. 

OSHA indicated that it will generally consider employers who fail to follow the current CDC COVID – related guidance to violate the General Duty Clause. (penalties for violations of the GDC range from $13,653 to $136,532 per violation.)

So, knowing and following, and being able to prove that you follow, current CDC guidance related to COVID is going to be critical. 

Last Friday the CDC indicated that it is changing the way that it measures high, medium, and low transmission areas, which in turn dictates whether people are recommended to wear face coverings. Prior to the change of last week, more than 90% of the U.S. pollution lived in an area classified as “high”, meaning that the CDC recommended that they wear face coverings indoors in public. Under the new methodology, each county/parish is given a “COVID community rating” (green, yellow, or orange). The different levels will determine which preventative measures the CDC recommends that you take. 

Under the new standards, approximately 30% of the population will reside in an area classified as “high”/orange, which recommends wearing a mask indoors in public. You can find the CDC’s community-level tool here https://www.cdc.gov/coronavirus/2019-ncov/your-health/covid-by-county.html to determine the color/level of your area. Currently, East Baton Rouge is low/green. This means that the CDC recommends staying up to date with COVID vaccinations and testing if suffering from symptoms, but it leaves the decision to wear face coverings up to the individual. Although this latest announcement by the CDC is not specifically related to employers, OSHA is likely to consider it when determining if an employer has violated the General Duty Clause.

Of course, local communities may implement their own requirements for face coverings. We do not know for certain if OSHA will consider the failure to follow locally required COVID precautions as a failure to comply with the General Duty Clause, but it is certainly a possibility, depending upon the facts of the situation. 

Bottom line: Assign someone to stay up to date with the CDC’s most recent positions on COVID protection and ensure that your organization complies with them.
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Breazeale, Sachse & Wilson, L.L.P. Labor & Employment Attorneys
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