对一起公共场所从业人员健康证明过期案件的分析与思考

公共场所直接为顾客服务的从业人员必须持有效健康证明上岗,经营单位未组织从业人员进行健康体检而安排其上岗,将面临卫生行政处罚。但在实践中,由于执法人员卫生监督、监测或案件调查取证所采取的方式方法存在一定的瑕疵,卫生行政处罚案件往往也存在一定的风险。本文旨在通过一起公共场所从业人员健康证明过期案件的分析研究,谈谈该案在事实和证据方面的认定问题及此案给卫生行政执法人员所提供的借鉴。     

Insurance Discrimination on the Basis of Health Status: An Overview of Discrimination Practices, Federal Law, and Federal Reform Options

Actuarial underwriting, or discrimination based on an individual's health status, is a business feature of the voluntary private insurance market. The term "discrimination" in this paper is not intended to convey the concept of unfair treatment, but rather how the insurance industry differentiates among individuals in designing and administering health insurance and employee health benefit products. Discrimination can occur at the point of enrollment, coverage design, or decisions regarding scope of coverage. Several major federal laws aimed at regulating insurance discrimination based on health status focus at the point of enrollment. However, because of multiple exceptions and loopholes, these laws offer relatively limited protections. This paper provides a brief overview of discrimination practices, the federal law, and federal reform options to manage discriminatory practices in the insurance and employee health benefit markets.     

Employee Retirement Income Security Act of 1974: rules and regulations for administration and enforcement; claims procedure. Pension and Welfare Benefits Administration, Labor. Final regulation

This document contains a final regulation revising the minimum requirements for benefit claims procedures of employee benefit plans covered by Title I of the Employee Retirement Income Security Act of 1974 (ERISA or the Act). The regulation establishes new standards for the processing of claims under group health plans and plans providing disability benefits and further clarifies existing standards for all other employee benefit plans. The new standards are intended to ensure more timely benefit determinations, to improve access to information on which a benefit determination is made, and to assure that participants and beneficiaries will be afforded a full and fair review of denied claims. When effective, the regulation will affect participants and beneficiaries of employee benefit plans, employers who sponsor employee benefit plans, plan fiduciaries, and others who assist in the provision of plan benefits, such as third-party benefits administrators and health service providers or health maintenance organizations that provide benefits to participants and beneficiaries of employee benefit plans.     

Health reform and employee health benefits programs

The impact of health reform on employee health benefits programs could be dramatic. Depending on the health reform program adopted, employers could face significant new regulatory and economic burdens in operating employee health benefits programs or could find themselves greatly relieved of such burdens. President Clinton's proposal, in particular, would dramatically alter today's practices. This article focuses on how the Clinton proposal would change employee health benefits programs. Although President Clinton has indicated a willingness to compromise, his legislation may prove to be a house of cards, with all provisions interdependent. Employers should study all pending proposals carefully and weigh in on the debate so as to ensure that lawmakers are fully educated before making potentially irreversible decisions.     

Employee Retirement Income Security Act of 1974; rules and regulations for administration and enforcement; claims procedure--Department of Labor. Notice of proposed rulemaking

This document contains a proposed regulation revising the minimum requirements for benefit claims procedures of employee benefit plans covered by Title I of the Employee Retirement Income Security Act of 1974 (ERISA or the Act). This proposed regulation would establish new standards for the processing of group health disability, pension, and other employee benefit plan claims filed by participants and beneficiaries. In the case of group health plans, as well as certain plans providing disability benefits, the new standards are intended to ensure more timely benefit determinations, improved access to information on which a benefit determination is made, and greater assurance that participants and beneficiaries will be afforded a full and fair review of denied claims. If adopted as final, the proposed regulation would affect participants and beneficiaries of employee benefit plans, plan, fiduciaries, and others who assist in the provision of plan benefits, such as third-party benefits administrators and health service providers or health maintenance organizations that provide benefits to participants and beneficiaries of employee benefit plans.     

Occupational exposure to ethylene oxide; Occupational Safety and Health Administration. Advance notice of proposed rulemaking

Notice is given that OSHA is undertaking, through rulemaking procedures under section 6(b) of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. 655(b), a reevaluation of the current occupational health standard regulating employee exposure to ethylene oxide (EtO), 29 CFR 1910.1000, Table Z-1. This notice summarizes the information currently available to OSHA concerning the production and use of EtO, estimates of employee exposure, and the potential health effects of employee exposure to EtO. The notice also invites interested parties to submit data, views and comments regarding the development of a new standard for EtO and the appropriate scope of coverage.     

Occupational exposure to ethylene oxide--Occupational Safety and Health Administration. Proposed rule and notice of hearing

By this notice, the Occupational Safety and Health Administration (OSHA) is proposing to amend its existing occupational standard that regulates employee exposure to ethylene oxide (EtO). The basis for this action is a determination by the Assistant Secretary, based on animal and human data, that exposure to EtO at OSHA's current permissible exposure limit (PEL) of 50 parts EtO per million parts of air (50 ppm) as an eight (8)-hour time-weighted average (TWA) is inadequate for employee health protection. OSHA proposes to reduce the PEL for EtO to a TWA of 1 ppm. An "action level" of 0.5 ppm as a TWA is included in the proposal as a mechanism for exempting an employer from the obligation to comply with certain requirements, such as employee exposure monitoring and medical surveillance, in instances where the employer can demonstrate that the employees exposures are at very low levels. The proposal would provide for among other requirements certain methods of exposure control, personal protective equipment, measurement of employee exposures, training, medical surveillance, signs and labels, regulated areas, emergency procedures and recordkeeping.     

Federal employees health benefits children's equity. Final rule

The Office of Personnel Management (OPM) is issuing final regulations to implement the Federal Employees Health Benefits Children's Equity Act of 2000, which was enacted October 30, 2000. This law mandates the enrollment of a Federal employee for self and family coverage in the Federal Employees Health Benefits (FEHB) Program, if the employee is subject to a court or administrative order requiring him or her to provide health benefits for his or her child or children and the employee does not provide documentation of compliance with the order.     

Final rules relating to use of electronic communication and recordkeeping technologies by employee pension and welfare benefit plans. Notice of final rulemaking

This document contains final rules under Title I of the Employee Retirement Income Security Act of 1974, as amended (ERISA), concerning the disclosure of certain employee benefit plan information through electronic media, and the maintenance and retention of employee benefit plan records in electronic form. The rules establish a safe harbor pursuant to which all pension and welfare benefit plans covered by Title I of ERISA may use electronic media to satisfy disclosure obligations under Title I of ERISA. The rules also provide standards concerning the use of electronic media in the maintenance and retention of records required by sections 107 and 209 of ERISA. The rules affect employee pension and welfare benefit plans, including group health plans, plan sponsors, administrators and fiduciaries, and plan participants and beneficiaries.     

Rules of agency practice and procedure concerning OSHA access to employee medical records. The Occupational Safety and Health Administration of the United States Department of Labor (OSHA). Final rule

These rules of agency practice and procedure, promulgated today as a new 29 CFR 1913.10, govern OSHA access to personally identifiable employee medical information contained in medical records. The rules are structured to protect the substantial personal privacy interests inherent in identifiable medical records, while also permit OSHA to make beneficial use of these records for proper occupational safety and health purposes. The rules regulate the manner in which OSHA will seek access to employee medical records, and how the medical information will be protected once in the agency's possession.     

A proposal for a nonreinstatement rule in unfair labor practice cases involving patient abuse

Nursing home discharges of employees based on patient abuse raise a difficult issue when the motivating factor for the disciplinary action is union activism. A tension is created between the rights of employees to engage in protected concerted activity and the rights of patients to quality care. In 1974, Congress passed the Health Care Institutions Amendments, which granted to non-profit health care workers collective organizing and bargaining rights substantially similar to those which workers in other industries had enjoyed for decades under the National Labor Relations Act. Congress intended to give health care workers only that degree of parity, however, which is compatible with the provision of high quality patient care. The agency charged with enforcing the Act, the National Labor Relations Board (NLRB), has failed to distinguish employee misconduct in industrial settings from patient abuse in health care institutions when fashioning remedies for discriminatorily discharged union activists. The NLRB typically has ordered the reinstatement, with back pay, of the patient abuser as the patient's primary care-giver. This Article suggests that a front pay remedy is more appropriate to these cases because it protects the patient's right to be free from abuse without sacrificing employee unionization rights.     

The use of medical examinations for employment purposes

This article examines a number of legal issues which arise where medical examinations or tests are used in the employment context, either to test the suitability of a prospective employee in pre-employment situations or to ascertain the fitness of existing employees. Employer justifications for seeking medical information usually relate to attempts to comply with health and safety legislation and to reduce workers compensation costs. This article discusses the legal obligations involved in pre-employment medical testing and, in particular, employee obligations to provide correct information in relation to their health to a prospective employer. It also notes the consequences for employees of providing false information in relation to workers compensation claims and dismissal cases. The article notes the growing trend of requiring drug and alcohol testing for existing employees, particularly in the mining industry. The article concludes by noting that employers need to take care in seeking medical information, and that it should not simply be done as a mechanical, matter-of-course exercise. Failure to observe anti-discrimination laws may result in the employer facing allegations of misuse of medical information and claims for damages for discrimination.     

Whistleblower protection for nurses and other health care professionals

Because most employees in the United States, including health care professionals, are employed "at will" (which means their employment can be terminated for any reason or no reason, as long as the reason isn't illegal), retaliatory actions by employers toward employees who speak out (i.e., blow the whistle) are not uncommon. Additionally, the law protecting whistleblowing employees varies greatly depending on the state where the employee works or if he or she works for the federal government. This article examines when and under what conditions a nurse or other health care professional may be protected from having an adverse employment action taken against him or her for reporting such issues as patient safety violations or health care fraud. The authors offer issues a nurse or other health care professional should consider before making the decision to blow the whistle. Finally, the authors also discuss the remedies such as reinstatement, back pay, or other compensatory mechanisms that may be available to employees terminated for reporting wrongdoing.     

Sick leave for family care purposes. Office of Personnel Management. Final rule

The Office of Personnel Management is issuing final regulations to expand the use of sick leave for family care purposes. Under the final regulations, an employee may use a total of up to 12 weeks of accrued sick leave each year to care for a family member with a serious health condition. This benefit broadens the options available for employees to meet their family responsibilities.     

Allotments from federal employees. Interim rule with request for comments

The Office of Personnel Management (OPM) is issuing interim regulations dealing with the use of OPM's allotment authority to allow for pretax salary reductions as part of OPM's flexible benefits plan. Using an allotment from an employee's pay to the employing agency allows certain payments (e.g., employee health insurance premiums, contributions to a flexible spending arrangement, and contributions to a health savings account) to be paid with pretax dollars, as provided under section 125 of the Internal Revenue Code. In addition, these regulations include certain policy clarifications and changes to make the regulations more readable.     

Federal employees health benefits program; coverage of temporary employees--OPM. Interim rule with request for comments

The Office of Personnel Management (OPM) is issuing interim regulations to clarify the eligibility of temporary employees to continue their Federal Employees Health Benefits (FEHB) coverage when they become compensationers. These regulations are necessary to distinguish between retirement as an employee annuitant and "retirement" as a compensationer. OPM is also issuing regulations to allow temporary employees an opportunity to change health plans if their salary is insufficient to pay the premium withholdings, to show the effective date of such an enrollment change, and to provide for the termination of these employees' enrollment if they do not change health plans.     

Employee representation and board size in the Nordic countries

Several European countries have mandatory employee representation on company boards, but the consequences for corporate governance are debated. We use employee representation rules in the otherwise quite similar Nordic countries (Denmark, Finland, Norway, and Sweden) to elicit information on shareholder preferences for employee representation and board size. We find that shareholders tend to choose board structures that minimize the proportion of employee representatives. In Denmark and Norway employee representation depends on board size, and shareholders choose board sizes that minimize the number of employee representatives. However, many companies have more employee representatives than is mandatory. In Sweden, where the law mandates a fixed number of employee representatives (two or three depending on firm size), shareholders choose to have larger boards. In Finland, where employee representation is not mandatory, <1 % of companies choose to have it. Whatever, the merits of employee representation, shareholders appear to be mildly averse to it.     

Claims procedures for employee benefit plans--Pension and Welfare Benefits Administration, Department of Labor. Request for information

This document requests information from the public concerning the advisability of amending the existing regulation under the Employee Retirement Income Security Act of 1974 (ERISA) that establishes minimum requirements for employee benefit plan claims procedures. The term "claims procedure" refers to the process that employee benefit plans must provide for participants and beneficiaries who seek to obtain pension or welfare plan benefits, including requests for medical treatment or services, consideration of claims, and review of denials of claims by plans. The primary purpose of this notice is to obtain information to assist the Department of Labor (the Department) in evaluating (1) the extent to which the current claims procedure regulation assures that group health plan participants and beneficiaries are provided with effective and timely means to file and resolve claims for health care benefits, and (1) whether and in what way the existing minimum requirements should be amended with respect to group health plans covered by ERISA. The furnished information also will assist the Department in determining whether the regulation should be amended with respect to pension plans covered by ERISA and in developing legislative proposals to address any identified deficiencies relating to the claims procedures that cannot be addressed by amending the current regulation.