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Tag: 2021 News

Feds Sue Uber for Overcharging the Disabled in California

The Justice Department filed a lawsuit against Uber Technologies Inc. for charging “wait time” fees to passengers who, because of disability, need more time to enter a car. Uber’s policies and practices of charging wait time fees based on disability have harmed many passengers and potential passengers with disabilities throughout the country.

The lawsuit, filed in the U.S. District Court for the Northern District of California, alleges that Uber violated Title III of the Americans with Disabilities Act (ADA), which prohibits discrimination by private transportation companies like Uber.

In April 2016, Uber began charging passengers wait time fees in a number of cities, eventually expanding the policy nationwide. Wait time fees start two minutes after the Uber car arrives at the pickup location and are charged until the car begins its trip.

The department’s complaint alleges that Uber violates the ADA by failing to reasonably modify its wait time fee policy for passengers who, because of disability, need more than two minutes to get in an Uber car. Passengers with disabilities may need additional time to enter a car for various reasons. A passenger may, for example, use a wheelchair or walker that needs to be broken down and stored in the car. Or a passenger who is blind may need additional time to safely walk from the pickup location to the car itself. The department’s lawsuit alleges that, even when Uber is aware that a passenger’s need for additional time is clearly disability-based, Uber starts charging a wait time fee at the two-minute mark.  

The lawsuit seeks relief from the court, including ordering Uber to stop discriminating against individuals with disabilities. Additionally, the department asks the court to order Uber to modify its wait time fee policy to comply with the ADA; train its staff and drivers on the ADA; pay money damages to people subjected to the illegal wait time fees; and pay a civil penalty to vindicate the public’s interest in eliminating disability discrimination.

“Uber’s wait time fees take a significant toll on people with disabilities,” said Acting U.S. Attorney Stephanie M. Hinds for the Northern District of California. “Passengers with disabilities who need additional boarding time are entitled to access ridesharing services without discrimination. This lawsuit seeks to assist people with disabilities to live their lives with independence and dignity, as the ADA guarantees.”

“People with disabilities deserve equal access to all areas of community life, including the private transportation services provided by companies like Uber,” said Assistant Attorney General Kristen Clarke for the Justice Department’s Civil Rights Division. “This lawsuit seeks to bring Uber into compliance with the mandate of the Americans with Disabilities Act while sending a powerful message that Uber cannot penalize passengers with disabilities simply because they need more time to get into a car. Uber and other companies that provide transportation services must ensure equal access for all people, including those with disabilities.”

If someone believes they have been a victim of disability discrimination by Uber because they, or someone they were traveling with, were charged wait time fees, please contact 833-591-0425 (toll-free), 202-305-6786, or send an email to Uber.Fee@usdoj.gov.  

Elimination of Pre-authorization For PT Improves WC Outcomes

Lean healthcare is the application of “lean” ideas in healthcare facilities to minimize waste in every process, procedure, and task through an ongoing system of improvement. Using lean principles, all members of the organization, from clinicians to operations and administration staff, continually strive to identify areas of waste and eliminate anything that does not add value for patients. Taiichi Ohno of Toyota, was the originator of lean principles. He described eight areas of waste that occur in every industry.

A new study found that Lean is a suitable methodology to accelerate patient recovery by reducing the time between on-the-job accidents and the beginning of physical therapy treatment.

The study identified ways to address inefficiencies in the workers’ compensation system and concluded that eliminating pre-authorization for physical therapy and the additional lead time it creates can improve health outcomes and reduce claim costs.

Omar Taha, in collaboration with his peers designed and deployed multiple case studies to better understand the journey of an injured worker within the workers’ compensation system.

This study was in partnership with a national healthcare provider in the field of workers’ compensation to conduct direct observations in five of their clinics across Florida and Pennsylvania. Researchers analyzed the data of 263 injured workers with eight or more physical therapy visits who were treated at clinics in both states over 31 days.

The research concluded activities associated with the pre-authorization of treatment were the primary non-value-added activity from the perspective of the injured worker based on delayed physical therapy treatment. Removing pre-authorization requirements could significantly reduce the lead time for treatment of injured workers. An injured worker could, for example, visit their referring physician and complete their first physical therapy session within the same office visit.

Half of the injured Pennsylvania workers in the researchers’ dataset attended their first physical therapy treatment within less than a day of obtaining a prescription whereas injured Florida workers required more than five days. In Florida, injured workers needed an average of 39.58 days to complete eight physical therapy visits compared to only 27.92 days to complete the same number of visits in Pennsylvania, a median of 34.09 vs. 22.15 days.

The disparity between the two states is likely due to Pennsylvania eliminating pre-authorization activities, according to the study.

“Physical therapy plays a significant role in the treatment of most work-related injuries and drives medical and indemnity costs of workers’ compensation claims,” said Taha, One Call senior director of continuous improvement and doctoral candidate in systems engineering at The George Washington University.

“Our findings corroborate that Lean is an effective methodology in identifying and removing administrative inefficiencies from the treatment process, which could accelerate patients’ recovery, reduce administrative burden on healthcare providers, and improve the overall claim cost,” said Taha.

Patterns emerged that showed inefficiencies in the information flow between insurance companies, referring care providers, and treatment care providers,” said Professor Thomas A. Mazzuchi from the Department of Engineering Management and Systems Engineering at The George Washington University. “This negatively impacts the delivery of care for injured workers.”

This was the first study to apply Lean methodology to workers’ compensation. The paper titled “Uncovering inefficiencies in the workers’ compensation industry using Lean methodology” was published in The TQM Journal.

Opioid Drugmakers Prevail in Second Case This Month

An Orange County Superior Court Judge ruled earlier this month that four drug companies cannot be held liable for California’s opioid epidemic. It marked the first trial win for any drug companies in the more than 3,300 lawsuits filed by states and local governments over a drug abuse crisis that the U.S. government says led to nearly 500,000 opioid overdose deaths over two decades.

The only other opioid trial to reach a verdict resulted in an Oklahoma judge in 2019 ordering J&J to pay $465 million to the state. However, the Oklahoma Supreme Court just reversed the verdict, finding the trial judge misinterpreted the state’s public nuisance law.

The Attorney General of Oklahoma sued three prescription opioid manufacturers and requested that the district court hold opioid manufacturers liable for violating Oklahoma’s public nuisance statute. The State settled with the other opioid manufacturers and eventually dismissed all claims against J&J except public nuisance.

The State presented evidence that J&J used branded and unbranded marketing, which actively promoted the concept that physicians were under treating pain. Ultimately, the State argued J&J overstated the benefits of opioid use, downplayed the dangers, and failed to disclose the lack of evidence supporting long-term use in the interest of increasing J&J’s profits.

The district court conducted a 33-day bench trial with the single issue being whether J&J was responsible for creating a public nuisance in the marketing and selling of its opioid products. The district court held J&J liable under Oklahoma’s public nuisance statute, and J&J appealed.

The question before the Oklahoma Supreme Court was whether the conduct of an opioid manufacturer in marketing and selling its products constituted a public nuisance

In a 5-1 ruling, the high court held that the district court’s expansion of public nuisance law went too far. Oklahoma public nuisance law does not extend to the manufacturing, marketing, and selling of prescription opioids.

Writing for the majority, Justice James R. Winchester said stopping the opioid crisis is a “laudable goal” but cannot be done by “reshaping” the public nuisance law that has traditionally been used to address “discrete, localized” problems.

The district court’s expansion of public nuisance law allows courts to manage public policy matters that should be dealt with by the legislative and executive branches; the branches that are more capable than courts to balance the competing interests at play in societal problems,” Winchester wrote. “Further, the district court stepping into the shoes of the Legislature by creating and funding government programs designed to address social and health issues goes too far.”

The majority said the high court has followed criminal and property-based limitations on the public nuisance law for 100 years.

The dissent writes that he would have reversed the verdict and sent the case back to the trial court for a new award.

“I would remand to the district court to recalculate damages based upon J&J’s share of the market in the years it sold its opioids in Oklahoma with its deceptive marketing scheme….,The attorney general’s basic theory of the case is tenable, both in law and equity.”

California COVID-19 Cases on the Rise Again!

A month ago the coronavirus seemed headed for a long winter’s nap in masked and well-vaccinated California. Gov. Gavin Newsom boasted that the Golden State “continues to lead the nation” as the only state to reach the Centers for Disease Control and Prevention’s yellow “moderate” tier of community virus transmission.

But the Mercury News reports that COVID-19 cases aren’t falling in California anymore. They have climbed back up to the CDC’s blood-red “high” level of virus transmission as the highly contagious Delta variant continues to wreak havoc.

“There are early indications that the decline in the Delta surge at the national level in the U.S. has ended,” said Ali H. Mokdad, professor of health metrics sciences at the University of Washington, which runs a widely followed model projecting the course of the pandemic. Currently, 19 states have increasing transmission, including several like California “that had previously appeared to have been declining.”

And while much of the Golden State’s current coronavirus woes are driven by virus spread in the less-vaccinated and restricted inland counties, the Bay Area hasn’t been immune. Most Bay Area counties that hoped to reach the yellow moderate level by now remain stubbornly stuck in orange. Marin and Santa Cruz counties, which had reached the yellow level, are back up to orange. San Francisco is the only county in yellow.

So why aren’t Golden Staters reaping more reward for their adherence to health guidance?

You’re paying for your success, which is weird,” Mokdad said. “You succeed in controlling the virus, and now you’re having infections.”

But he and other health experts say it’s not because the health guidance isn’t sound. Outbreaks burn out once the virus runs out of enough new people without immunity to infect. And people can gain immunity both from infection recovery and vaccines.

With higher vaccination levels than in the Southeast, California saw a smaller wave of cases over the summer as the Delta variant ripped through the country, mostly infecting those who hadn’t been vaccinated. Now that they’ve recovered, they have immunity too, cutting off avenues for the virus to spread.

“These regions are now being partly protected by high prior infection rates,” said Dr. Bob Wachter, chair of the medical department at the University of California-San Francisco. “But these people whose immunity comes from COVID are not very well protected, and their immunity will wane with time.”

States in the Southeast hammered with big summer case surges now are faring better simply because, with their combination of vaccinations and infections, they have fewer left who are susceptible to the virus than in California, Mokdad said. But “they got there at a heavy price.”

Other factors also are in play. The Southeast’s hot, humid summers drive people to the air-conditioned indoors where the virus spreads easily, while Californians enjoy moderate weather out in the surf and sand. But the autumn chill is now bringing Californians inside, too.

Feds Say “Most Truckers” Can Avoid OSHA Vaccination Mandate

Biden’s vaccine or testing mandate for business with 100 or more employees went info effect on Friday, after the Occupational Safety and Health Administration published the requirements in the Federal Register. Businesses have until Jan. 4 to ensure their employees have received the shots required for full vaccination. After that date, workers who are unvaccinated must submit a weekly negative Covid test to enter the workplace. Unvaccinated workers must wear masks indoors at their workplaces starting Dec. 5.

The American Trucking Associations, which pushed back against the mandates to White House officials at the Office of Management and Budget last month, had warned many drivers would quit rather than follow the rules, further disrupting the national supply chain over the holiday season at a time when the industry is already short 80,000 drivers.

“Given the nationwide shortage of truck drivers, it is vital that our industry has the relief it needs to keep critical goods moving, including food, fuel, medicine and the vaccine itself,” American Trucking Associations President and CEO Chris Spear said Friday.

In response to the pushback, a report by CNBC said that Labor Secretary Marty Walsh announced that most truckers are not covered by President Joe Biden’s Covid vaccine and testing requirements for private businesses, a win for an industry that had warned of potential walkouts that would disrupt already strained supply chains.

“We’ve heard some pushback from truckers today. The ironic thing is most truckers are not covered by this, because they’re driving a truck, they’re in a cab, they’re by themselves, they wouldn’t be covered by this,” Walsh said in an interview with MSNBC’s Chris Hayes late Thursday.

However, the mandate exempts workers “who do not report to a workplace where other individuals such as coworkers or customers are present,” including truckers who are alone in their cab or who are not interacting with others at their point of departure or destinations, according to the Department of Labor. People who work from home or exclusively outdoors are also exempt.

“All indications thus far from the Department of Labor suggest this exemption does apply to the commercial truck driver population,” Spear said on Friday in a statement, hailing the provisions “as an enormous victory for our association and industry.”

The vaccination and testing requirements would apply to “truck drivers who work in teams (i.e., two people in a truck cab), or those who interact with people in buildings at their destinations or starting points,” a Labor Department spokesperson told CNBC.

Despite the exemptions, Spear still criticized the mandate, accusing OSHA of “using extraordinary authority unwisely, applying it across all industries at an arbitrary threshold of 100 employees that fails to factor in actual risks.”

“We are weighing all options of recourse to ensure every segment of our industry’s workforce is shielded from the unintended consequences of this misguided mandate,” Spear said.

Angelenos Fight Back Over Strict COVID Rules

The Los Angeles Times reports that Thousands of people gathered outside Los Angeles City Hall to protest COVID-19 vaccination mandates on Monday – the day the city began enforcing some of the nation’s strictest vaccination verification rules for businesses.

L.A. now requires proof of full COVID-19 vaccination to enter indoor restaurants, shopping centers, movie theaters, hair and nail salons, gyms, museums, bowling alleys, performance venues and other spaces.

Already faced with at least two lawsuits over its coronavirus-related student vaccination mandate, the Los Angeles Unified School District is now being sued over a similar requirement for employees to get their COVID-19 shots.

According to the report in Daily News, Health Freedom Defense Fund, a Wyoming-based organization that advocates against mandatory masking, testing and vaccinations, and six LAUSD employees filed a lawsuit against the district last week, challenging L.A. Unified’s staff vaccination mandate.

California Educators for Medical Freedom, founded by LAUSD employees opposed to a vaccine mandate, was inadvertently left off as a plaintiff, but the complaint will be amended to include the group, Leslie Manookian, founder and president of Health Freedom Defense Fund, said on Monday, Nov. 8.

Filed in U.S. District Court for the Central District of California, the complaint names as defendants Megan Reilly, the district’s interim superintendent; Ileana Davalos, chief human resources officer; and all seven school board members.

Attorneys for the plaintiffs challenged the need for the COVID-19 vaccines, stating in the complaint that they do not prevent infections or transmission of the coronavirus, and that their effectiveness wanes after several months. The complaint also states that the vaccination mandate violates an individual’s right to “personal autonomy, self-determination, bodily integrity and the right to reject medical treatment,” as provided by the Fourteenth Amendment.

“That’s what LAUSD is doing to these teachers and staff at this school district,” she added. “They are forcing them to make a choice between caring for their families and a medical intervention they don’t want.”

Employees who did not meet a mid-October deadline for providing proof of having received at least one dose of a COVID-19 vaccine were prohibited from reporting to work in person. Some were provided accommodations, including being reassigned to a remote position, but not everyone who sought an exemption were granted one. Even if an exemption was granted, not everyone received a workplace accommodation, as was the case for most of the six employees named as plaintiffs in this lawsuit, according to the complaint.

As part of its vaccination mandate, LAUSD agreed to pay unvaccinated employees impacted by the mandate through Oct. 31. It could have begun firing employees starting Nov. 1, though it’s also possible some employees are using their “benefitted time” or have been placed on leave.

The district is requiring students 12 and older to receive their first vaccine dose by Nov. 21 and the second by Dec. 19, before second semester starts in January.

LAUSD has been hit with at least two lawsuits over its student mandate. Attorneys for one of the suits, filed by the California chapter of Children’s Health Defense and the Protection of the Educational Rights of Kids, submitted a motion this week seeking a preliminary injunction to halt LAUSD’s student mandate.

Federal Court of Appeals Stays OSHA Vaccination Mandate

Over the weekend, the 5th U.S. Circuit Court of Appeals granted an emergency stay of the requirement by the federal Occupational Safety and Health Administration that those workers be vaccinated by Jan. 4 or face mask requirements and weekly tests.

The White House expects the new regulation created last week to “impact over 80 million workers in private sector businesses.”

Texas’ Republican Attorney General Ken Paxton tweeted Saturday “Yesterday, I sued the Biden Admin over its unlawful OSHA vax mandate.” He then added “WE WON. Just this morning, citing “grave statutory and constitutional issues,” the 5th Circuit stayed the mandate. The fight is not over and I will never stop resisting this Admin’s unconstitutional overreach.”

His case was joined by the court into a master case which included several other states in the 5th Circuit, as well as a long list of large employers who also filed several separate actions seeking the same relief.

The Judge who issued the order wrote “Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court. The Government shall respond to the petitioners’ motion for a permanent injunction by 5:00 PM on Monday, November 8. The petitioners shall file any reply by 5:00 PM on Tuesday, November 9.”

Louisiana Attorney General Jeff Landry said the action stops Democratic President Joe Biden “from moving forward with his unlawful overreach.”

“The president will not impose medical procedures on the American people without the checks and balances afforded by the constitution,” said a statement from Landry, a Republican.

Solicitor of Labor Seema Nanda said the U.S. Department of Labor is “confident in its legal authority to issue the emergency temporary standard on vaccination and testing.”

OSHA has the authority “to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them,” she said.

The brief filed by the Burnett Companies Consolidated, Inc. Choice Staffing, LLC and Staff Force, Inc., in a companion case, lays out the essential theory supporting the Order. “Of the nine emergency temporary standards published prior to this year, three were not challenged. The six that were challenged, only one was fully upheld, and most were stayed prior to enforcement. OSHA has once again acted illegally because, as shown below, the subsection that gives it authority issue an ETS violates the nondelegation doctrine under Article I, Section 1 of the U.S. Constitution.”

Such circuit decisions normally apply to states within a district – Mississippi, Louisiana and Texas, in this case – but Landry said the language employed by the judges gave the decision a national scope.

New Study of Vaccination Outcomes of 780 Thousand Veterans

A new study just published in Science, which analyzed the records of nearly 800,000 US veterans of all ages found that the three main Covid-19 vaccines experienced ‘dramatic’ drops in efficacy over six months.

Prior to this study, three reports of the U.S. Centers for Disease Control (CDC) in August 2021 demonstrated protection against infection had declined in mid-summer as the Delta variant rose to dominance; protection against hospitalization and death remained high.

This phenomenon has been most comprehensively monitored in Israel, where high levels of transmission of the Delta variant led to a resurgent outbreak in mid-June 2021, despite a successful nationwide campaign to vaccinate the population.

This new study examined SARS-CoV-2 infection and deaths by vaccination status in 780,225 Veterans during the period February 1, 2021 to October 1, 2021, encompassing the emergence and dominance of the Delta variant in the U.S.

Between early March and September, as the Delta variant rapidly became the dominant strain worldwide, the ability of Moderna’s two-dose vaccine to prevent infections dropped from 89% – 58%, Pfizer’s went from 87% – 45%, and J&J’s single-dose vaccine went from 86% to just 13%.

The vaccines’ ability to prevent death in older Americans remained somewhat robust over the same period, according to the report.

Among veterans 65 and older who were inoculated with the Moderna vaccine, those who developed a so-called breakthrough infection were 76% less likely to die of COVID-19 compared with unvaccinated veterans of the same age.

Older veterans who got the Pfizer-BioNTech vaccine and subsequently experienced a breakthrough infection were 70% less likely to die than were their unvaccinated peers.

And when older vets who got a single jab of the J&J vaccine suffered a breakthrough infection, they were 52% less likely to die than their peers who didn’t get any shots.

OSHA Posts Vaccination Rules for Employer’s of 100 or More

The Occupational Safety and Health Administration (OSHA) has issued an emergency temporary standard (ETS) to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination. They have issued a shorter “Fact Sheet” to help employers understand the requirements.

Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.

This ETS applies to employers with a total of 100 or more employees at any time the standard is in effect. The ETS is effective immediately upon publication in Federal Register. To comply, employers must ensure provisions are addressed in the workplace by the following dates:

– – 30 days after publication: All requirements other than testing for employees who have not completed their entire primary vaccination dose(s)
– – 60 days after publication: Testing for employees who have not received all doses required for a primary vaccination

The ETS requires employers to:

– – (1) require employees to promptly provide notice when they receive a positive COVID- 19 test or are diagnosed with COVID-19;
– – (2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider;
– – (3) keep removed employees out of the workplace until they meet criteria for returning to work.

In light of the unique occupational safety and health dangers presented by COVID-19, and against the backdrop of the uncertain economic environment of a pandemic, OSHA is proceeding in a stepwise fashion in addressing the emergency this rule covers.

OSHA needs additional time to assess the capacity of smaller employers, and is seeking comment to help the agency make that determination. Nonetheless, the agency is acting to protect workers now in adopting a standard that will reach two-thirds of all private-sector workers in the nation, including those working in the largest facilities, where the most deadly outbreaks of COVID-19 can occur.

OSHA intends the ETS to address comprehensively the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19. Thus, the standard is intended to preempt States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to these issues, except under the authority of a Federally-approved State Plan.

In particular, OSHA intends to preempt any State or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing. Additional information on the preemption of State and local laws is found in Section VI.A. of the ETS preamble.

OSHA will continue to monitor trends in COVID-19 infections and death as more of the workforce and the general population become fully vaccinated against COVID-19 and as the pandemic continues to evolve. Where OSHA finds a grave danger from the virus no longer exists, or new information indicates a change in measures necessary to address the grave danger, OSHA may update this ETS, as appropriate.

Although this ETS takes effect immediately, it also serves as a proposal under Section 6(b) of the OSH Act(29 U.S.C. 655(b)) for a final standard.

Accordingly, OSHA seeks comment on all aspects of this ETS and whether it should be adopted as a final standard. OSHA encourages commenters to explain why they prefer or disfavor particular policy choices, and include any relevant studies, experiences, anecdotes or other information that may help support the comment.

City of LA to Implement Toughest Venue Vaccine Verification Rules

Los Angeles city officials are set to implement some of the nation’s strictest COVID-19 vaccine verification rules next week, but they don’t plan to immediately cite or fine those who run afoul of the new regulations. According to the article in the Los Angeles Times, L.A. officials plan to start with educational and outreach efforts, rather than immediately penalize businesses when rules go into effect Monday.

That’s similar to the approach of officials in Los Angeles County as a whole. While both the county and city have rules requiring residents to show proof of vaccination to enter certain businesses, the county’s rules affect fewer types of establishments compared with those of the city.

Enforcement of the city program, dubbed SafePassLA, won’t officially begin until Nov. 29. Starting that date, businesses or venues that flout the rules will face penalties – at first a warning, then an escalating series of fines starting at $1,000 and topping out at $5,000 for a fourth or subsequent violation.

The city’s rules are expansive, requiring proof of full COVID-19 vaccination to enter indoor restaurants, shopping centers, movie theaters, hair and nail salons, coffee shops, gyms, museums, bowling alleys, performance venues and other spaces.

Attendees of outdoor events with 5,000 or more people also will have to show proof of vaccination or that they’ve recently tested negative for the coronavirus.

L.A. County, on the other hand, has imposed vaccine verification requirements in only a few business sectors: indoor bars, wineries, breweries, distilleries, nightclubs and lounges. Initially, patrons and employees in those spaces needed to show only they’d received at least one vaccine dose. But as of Thursday, they are required to demonstrate they are fully vaccinated.

L.A. County’s verification requirement has been in place for nearly a month, but health officials said this week they have yet to cite any businesses for noncompliance. County officials have regularly said they favor education over enforcement when implementing new coronavirus-related health measures.

Though it’s early, it appears many businesses are already toeing the line. From Oct. 16 to 22, county public health inspectors visited 78 bars and found 85% of them were following the requirement to verify customers’ vaccination status. And preliminary findings from the weekend of Oct. 23 and 24 indicate that 90% of bars and 100% of visited lounges and nightclubs were in compliance.

Some have worried that the disconnect between the city and county requirements will spark confusion among businesses and customers, potentially leading to unwitting violations. County health officials confirmed this week they are not considering any changes to their rules.