CIR collective bargaining agreements typically contain language that requires just cause to discipline resident physicians. CIR, if a member is disciplined for refusing to perform work under hazardous conditions, we will enforce this just cause discipline standard. Some resident physicians, depending on the state they live in, have a right to refuse to perform work that they have a reasonable belief is hazardous. An example of hazardous work might be an employer demanding that a health care worker treat a COVID-19 positive patient without any PPE. Contact your CIR organizer immediately if your employer directs you to perform hazardous work.

There is no law that would prohibit an employer from doing that. That said, CIR will take the position that residents should be able to use sick time if the Hospital is not already allowing it. If the hospital bars a resident from using sick time, CIR can file a grievance. In addition, certain states have amended their disability and/or unemployment insurance laws to allow for employees to apply for benefits if they are quarantined as a result of civil, medical or employer-mandated quarantine and either have exhausted their sick time or are being barred by their employer from utilizing it. If this is an issue for you, please contact your CIR organizer.

CIR’s position, in this circumstance, is that the resident should be paid while quarantined, but that they should not have to use any of their own leave time. Instead, Hospitals should allow House Officers to do clinical work such as virtual medical screenings, research or other educational activities where feasible. If a House Officer is required to use leave time in this situation, CIR can file a grievance on their behalf. If a healthcare provider, as opposed to an employer, requires the resident to be quarantined, it is possible that unemployment or workers’ compensation insurance may apply. Contact your CIR organizer if this occurs.

There are no laws that prohibit an employer from restricting an employee’s travel. That said, if a resident ignores the employer’s restriction and is disciplined, the member or CIR can grieve on the grounds that it is discipline without good cause. Residents are advised to abide by travel instructions issued by the employer, as an arbitrator could well find that a personal travel restriction, in the face of a global pandemic, is reasonable and enforceable. Residents should note that Hospitals may require you to self-quarantine for 14 days upon their return from travel, depending on the locations to which they travelled. The following is a statement from the ACGME: Sponsoring Institutions and programs should be aware of resident/fellow travel history and plans. If plans include travel to high-risk areas, the individual should be informed about the risks of being unable to return and/or the possibility of being placed in quarantine.

In short yes. That said, the ACGME advises that any requirements for quarantine should be guided by the applicable institution’s policies, local health departments, and CDC recommendations. However, employers may not engage in unlawful discrimination or assumptions on the basis of a person’s race, national origin or ethnicity.

This is hard to answer with any certainty. We have received reports that some Residency Review Committees (“RRCs”) are encouraging programs to work with residents so they can finish their year/training on time. That said, if a resident is out for an extended period of time it would seem that an extension would be likely, especially if they’ve already taken a substantial amount of paid time off this residency year. The ACGME has shared a statement from the American Board of Medical Specialties (“ABMS”) with Designated Institutional Officials (“DIOs”). Included in the statement is a sentence saying the following: In situations in which quarantine impedes completion of on-time training, boards are receptive to case-by-case discussions and do not wish to penalize trainees for situations beyond their control.

It cannot be said, with certainty that resident physicians and other health care providers will be able to obtain workers’ compensation coverage. However, it is likely that residents will be deemed covered if they contract the virus as part of their job. There would need to be evidence of a work-related exposure, but if the exposure is documented, the likelihood exists that residents will be able to successfully argue that their jobs put them at greater risk of exposure than the general public. Workers compensation laws vary by state so please contact your CIR organizer for questions about a specific case. Short-term disability is included in the benefits suite for some CIR hospitals. You should check with your CIR organizer to determine if disability insurance is part of your CIR benefits package. Short term disability may also be available pursuant to the state’s short-term disability program or a disability insurance policy. Contact your CIR organizer if you need further information on these subjects.

If there’s nothing in the CBA limiting them from doing so, then yes. If this situation occurs, the applicable collective bargaining agreement should be reviewed. Most typically, our agreements would require hospitals to pay residents for canceled vacation time. California law treats accrued vacations like wages and would require a payout regardless of what our CBA says. When Hospitals require a resident to cancel their vacation and refuse to commit to either compensating residents for the lost vacation time or rolling the vacation time into the next residency year, residents should contact their CIR organizer about potentially filing a grievance. Residents who file a grievance over lost vacation should demand that they are either paid or allowed to roll over the vacation to the following residency year. In addition, Residents who have incurred expenses or were required to pay cancellation fees as a result of their cancelled vacation should also consider seeking reimbursement for those costs. (Note: While accreditation boards have shown some flexibility in response to COVID-19, it is important to note that rolling over vacation to the following year might be complicated due to leave limitations under certain Board certification requirements.)

Federal Legislative Response 1. Economic Stimulus – The economic stimulus package recently passed by congress and expected to be signed by the President will include:

• Direct payments to American citizens of up to $1200 ($2400 for married couples)
• Suspension of student loan payments without penalty through September 30
• Protections against evictions for 120 days if a landlord receives a federally backed mortgage loan.

2. Families First Coronavirus Response Act of 2020 Congress recently passed a bill, which the President signed, called Families First Coronavirus Response Act of 2020 (“Act”). The Act provides for:

• Free coronavirus testing
• 10 paid sick days for employees who are being treated or quarantined for COVID-19, or for caring for such person. These paid sick requirements apply to employers with more than 50 and up to 500 employees.

State Legislative Responses There has been much COVID-19 related legislative activity in states in which CIR members work in the areas of unemployment insurance, suspension of evictions and leave time. Please check with the Legal Department with specific questions about your chapter.

The Governor of New York has issued an Executive Order suspending regulations of resident duty hours There have not been, at this time, actions in other states addressing duty hour limitations. The ACGME, action by the Governor of NY notwithstanding, has not withdraw or relaxed its duty hour limitations The ACGME issued the following statement: The ACGME Common Program Requirements Section VI Work Hour Requirements will remain unchanged. Because safety of patients and residents/fellows is the ACGME’s highest priority, it is important that all residents and fellows receive adequate rest between clinical duties because violations of the work hours limitations have been associated with an increase in medical errors, which might lead to lapses in infection control. At a time when adherence to infection control procedures becomes an important safety issue, slips in this area could increase risks for both patients and residents/fellows. In addition, duty hours limits contained in your CIR Collective Bargaining Agreement may also limit your Hospital’s ability to exceed current work hours standards.

The following is from the ACGME:

• any resident, fellow, and faculty member providing care to patients potentially infected with COVID-19 will be fully trained in treatment and infection control protocols and procedures adopted by their local health care setting; and,
• any resident or fellow who provides care to patients will do so under the appropriate supervision for the clinical circumstance and the level of training of the resident/fellow. Faculty members are expected to have been trained in the treatment and infection control protocols and procedures adopted by their local health care settings. Sponsoring Institutions and programs should monitor the CDC website.

If you are being required perform work that you are untrained to do please notify your CIR organizer. Please note that many states have whistleblower protections for health care workers who are retaliated against for raising concerns about improper quality of patient care or who refuse to participate in an activity or practice of their employer that they, in good faith, reasonably believe constitutes improper quality of patient care. Residents who experience such retaliation should contact their CIR organizer immediately.

The following is from the American Board of Medical Specialties (ABMS): In most cases, specialty boards’ existing leave policies will cover training disruptions caused by quarantine, and boards are supportive of creative strategies to recognize learning opportunities that can take place during such times.

This, at least at present, seems to be decided hospital by hospital. Even the quality of the test offered seems to vary hospital by hospital. The following is from the CDC website: Clinicians considering testing of persons with possible COVID-19 should continue to work with their local and state health departments to coordinate testing through public health laboratories, or use COVID-19 diagnostic testing, authorized by the Food and Drug Administration under an Emergency Use Authorization (EUA) through clinical laboratories. Increasing testing capacity will allow clinicians to consider COVID-19 testing for a wider group of symptomatic patients. Clinicians should use their judgment to determine if a patient has signs and symptoms compatible with COVID-19 and whether the patient should be tested. Most patients with confirmed COVID-19 have developed fever1 and/or symptoms of acute respiratory illness (e.g., cough, difficulty breathing). Priorities for testing include: Other considerations that may guide testing are epidemiologic factors such as the occurrence of local community transmission of COVID-19 infections in a jurisdiction. Clinicians are strongly encouraged to test for other causes of respiratory illness.

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PRIORITY 1 Ensure optimal care options for all hospitalized patients, lessen the risk of nosocomial infections, and maintain the integrity of the healthcare system

• Hospitalized patients
• Symptomatic healthcare workers

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PRIORITY 2 Ensure that those who are at highest risk of complication of infection are rapidly identified and appropriately triaged

• Patients in long-term care facilities with symptoms
• Patients 65 years of age and older with symptoms
• Patients with underlying conditions with symptoms
• First responders with symptoms
• Individuals with mild symptoms in communities experiencing high COVID-19 hospitalizations

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NON-PRIORITY

• Individuals without symptoms

If the Hospital agreed to reimburse a resident for expenses related to a conference, they should still reimburse residents if they do not allow the resident to travel to it, or if the conference is cancelled. Notify your CIR organizer if you do not receive a reimbursement.

This would have to be negotiated in a side letter with the hospital. Hospitals will likely take the position that this is not something they have to negotiate mid-contract. If there are ongoing CBA negotiations at a hospital we could consider, depending where we are in negotiations, submitting a proposal on this.

Asking an employee about their health condition would likely lead to the disclosure of a disability. Therefore, the question would violate the law. However, the EEOC currently advises that because coronavirus is a pandemic, as assessed by health authorities and the CDC, employers may measure employee body temperatures.

If a resident has a disability, such as a respiratory ailment or compromised immune system, the hospital may be required to provide the resident with a reasonable accommodation to protect their health. Potential reasonable accommodations could include working from home or being assigned to non-COVID-19 patients. If you have a medical condition that is not being accommodated you should contact your CIR organizer.

A hospital is required to keep resident medical information private and confidential; however, COVID-19 is a reportable illness under OSHA’s Injury and Illness Recordkeeping and Reporting Requirements. Private hospitals and certain public hospitals covered by OSHA are expected to advise employees if they were subjected to a potential exposure from a fellow employee, though they should not identify the colleague who tested positive. The CDC advises the following: If an employee is confirmed to have COVID-19 infection, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). The fellow employees should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).

Hospitals may not discipline employees for taking FMLA qualifying leave. Similar state laws would also prohibit this.

The FMLA grants eligible employees who have been employed for at least 12 months the right to take 12 weeks of unpaid leave to care for a family member with a serious health condition. The existence of state and local laws that provide paid leave for family medical care vary by jurisdiction. Please contact your CIR organizer if you have any questions.

State or local laws may address this. California Labor Code, for example, requires employers of 25 or more employees to allow employees to take 40 hours of leave to address a school emergency. Please contact your CIR organizer with questions specific to your chapter.

This would likely vary from hospital to hospital. That said, missing a shift and requiring coverage because of the coronavirus doesn’t seem likely to be treated differently than missing a shift for some other reason.

If the situation above occurs, the resident physician should check with the relevant Board about their eligibility questions and discuss what steps they need to take.

CIR can propose to hospitals that they allow telecommuting (for example, virtual medical screening) where feasible. While many hospitals would likely argue that whether to allow telecommuting is their prerogative and is covered by the management rights clause of the collective bargaining agreement, the CDC and public health departments are directing employers to offer this option where feasible. In addition, telecommuting might be deemed a reasonable accommodation for residents who have a disability that places them at a higher risk of contracting COVID-19. Note that employers in jurisdictions where a “shelter in place” order has been issued, may be required to allow telecommuting where feasible.

Possibly. This is a fact specific question that would depend on the nature of the new job responsibilities as well as any relevant contract language in the collective bargaining agreement. Please contact your CIR organizer with specific questions about your chapter.

The ACGME has advised that resident physicians should only provide patient care consistent with their level of training as a resident/fellow. However, we are aware that this has been happening. Please contact your CIR organizer if this happens at your hospital. Some states through Executive Orders have granted immunity from civil liability or loosened the restrictions on the practice of health care workers generally, including residents. For example, on March 23, 2020 a provision in an Executive Order issued by New York Governor Andrew Cuomo stated in part: “[A]ll physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses, and licensed practical nurses shall be immune from civil liability for any injury or death [allegedly sustained] directly or as a result of an act of omission [in the course of providing care in support of the COVID-19 emergency] unless it is established that such injury or death was caused by gross negligence.” (- governor.ny.gov) Similarly, Massachusetts Governor Charles Baker issued an Executive Order expanding access to physician services, which provided in part that limited licensees could engage in internal moonlighting under certain circumstances. (- mass.gov)

No. New York has set a floor of five days off. It does not provide additional days off for employees that are already entitled to at least 5 paid leave days. Our members are all entitled to more than five days off each calendar year.

See answer to Question 1.