Age Discrimination, Workplace Issues at House Hearing

Published in RINewsToday.com on March 22, 2021

Just days ago, Rep. Robert C. “Bobby” Scott (D-VA), chairperson of the House Committee on Education and Labor and Rep. Rodney Davis (R-IL) introduced, H.R. 2062, the bipartisan “Protection Older Workers Against Discrimination Act” (POWADA), a bill that would strengthen federal anti-discrimination protections for older workers. The legislation was introduced March 18, 2021, the same day of a joint House Education and Labor Subcommittee hearing, held to address a variety of workplace issues.  POWADA has been referred to the House Committee on Education and Labor for consideration.

The reintroduction of POWADA is timely.  As the COVID-19 pandemic continues, older workers are attempting to keep their jobs, working more and longer than they ever have. When seniors lose their jobs, they are far more likely than younger workers to join the ranks of the long-term unemployed. And unfortunately, discrimination appears to be a significant factor in older workers’ long-term unemployment.

A 2018 survey conducted by the Washington, DC-based AARP found that 3 in 5 workers age 45 and older had seen or experienced age discrimination in the workplace. The 2018 survey also found that three-quarters of older workers blame age discrimination for their lack of confidence in being able to find a new job.

Congress Gears Up to Again Fight Age Discrimination

Reps. Scott and Davis were joined by seven Republicans and 14 Democrats, including Civil Rights and Human Services Subcommittee Chair Suzanne Bonamici (D-OR) and Workforce Protections Subcommittee Chair Alma Adams (D-NC) to support H.R. 2062.

Rhode Island Rep. David Cicilline has also requested to be a co-sponsor of this legislation.

POWADA was first introduced in Congress after an adverse 2009 Supreme Court decision, Gross v. FBL Financial Services, made it much more difficult for older workers to prove claims of illegal bias based on age. Under Gross, plaintiffs seeking to prove age discrimination in employment are required to demonstrate that age was the sole motivating factor for the employer’s adverse action.  The Supreme Court ruling upends decades of precedent that had allowed individuals to prove discrimination by showing that a discriminatory motive was one of the factors on which an employer’s adverse action was based.

Scott’s reintroduced POWADA returns the legal standard for age discrimination claims to the pre-2009 evidentiary threshold, aligning the burden of proof with the same standards for proving discrimination based on race and national origin.

“Everyone– regardless of their age – should be able to go to work every day knowing that they are protected from discrimination. Unfortunately, age discrimination in the workplace is depriving older workers of opportunities and exposing them to long-term unemployment and severe financial hardship, says chairperson Scott, noting that the reintroduced bipartisan bill would finally restore the legal rights under the Age Discrimination in Employment Act, which covers workers age 40 and over.

Republican Rep. Rodney Davis puts aside political differences and has stepped up to the plate with a handful of GOP lawmakers to co-sponsor Scott’s POWADA legislation. “Every American, including older Americans, deserves to work in a workplace or jobsite that is free from discrimination. That’s why I’m proud to team up with chairperson Bobby Scott and a bipartisan group of lawmakers in introducing the Protecting Older Workers Against Discrimination Act. Our bipartisan bill provides workplace protections for older workers by removing barriers they have to filing discrimination claims, ensuring their workplace rights can be enforced, says Davis, pledging to work with colleagues on both sides of the aisle to finally get the bill passed,” he says.    

Oregon Rep. Bonamici, who chairs the Subcommittee on Civil Rights and Human Services, notes that her state has a rapidly aging population, and age discrimination in the workplace remains disturbingly pervasive.  She joins Scott in cosponsoring POWADA.

“I’ve heard from Oregonians who were denied or lost a job because of their age, but the bar for proving discrimination is very high and the outcomes are uncertain. The bipartisan Protecting Older Workers Against Discrimination Act makes it clear that unlawful discrimination in the workplace is unacceptable and holds employers accountable for discriminatory actions,” says Bonamici.

Adams, who chairs the Subcommittee on Workforce Protections, joins Bonamici in cosponsoring POWADA.  The North Carolina Congresswoman states: “Labor law must protect the dignity of all workers and it must recognize that discrimination against older Americans is discrimination all the same,” says Adams, who chairs the Subcommittee on Workforce Protections. The North Carolina Congresswoman notes that POWADA ensures that older workers will be fairly treated in the job market, returning the legal standard for proving discrimination back to its original intent. There is no place for disparate treatment based on age in the workforce.”

“Labor law must protect the dignity of all workers and it must recognize that discrimination against older Americans is discrimination all the same,” says Adams, who chairs the Subcommittee on Workforce. The North Carolina House Lawmaker says that POWADA ensures that older workers will be fairly treated in the job market, returning the legal standard for proving discrimination back to its original intent. There is no place for disparate treatment based on age in the workforce.

“The introduction of this bill is a crucial step to strengthening the law and restoring fairness for older workers who experience age discrimination,” said Nancy LeaMond, AARP Executive vice president and Chief Advocacy & Engagement Officer. “It sends a clear message that discrimination in the workplace – against older workers or others – is never acceptable.

“Age discrimination in the workplace, like any other kind of discrimination, is wrong.,” said AARP Rhode Island State Director Kathleen Connell. That’s why AARP is fighting all forms of age discrimination in the hiring process and on the job, including an unfair court decision that makes age discrimination more difficult to prove than race- or sex-based discrimination. “Rhode Islanders are living and working longer and experienced workers bring expertise, maturity, and perspective,” Connell added. “Yet negative stereotypes and mistaken assumptions mean that older people are often treated unfairly in the workplace. We need bipartisan Congressional action to address this stubborn and persistent problem.”

Tackling Workforce Issues

Over two-hours, four witnesses testified at a joint Zoom hearing, “Fighting for Fairness: Examining Legislation to Confront Workplace Discrimination,” held before the House Education and Labor Subcommittee on Civil Rights and Human Services and the Subcommittee on Workforce Protections. The morning hearing addressed an array of workforce issues including race and longstanding gender inequities and barriers and pregnancy discrimination at the workplace. A spotlight was also put on the rampant increase of age discrimination that older workers are now facing in the job market and the need to pass POWADA to reverse the detrimental impact of a 2009 Supreme Court decision.

Lauren McCann, senior attorney at AARP Foundation, pointed out to the attending House lawmakers that age discrimination in the workplace remains “stubbornly persistent” and urged a House Education and Labor hearing to “re-level the playing field” by passing strong anti-bias legislation.

McCann told the committee that the ongoing COVID-19 pandemic has exacerbated the problems faced by older workers, who have left the labor force in the last year at twice the rate during the Great Recession.

McCann testified that passage of POWADA, sponsored by Scott, the Chair of the House Committee of Education and Labor, is crucial to reverse the 2009 Supreme Court decision in the Gross v. FBL Financial Services, Inc. case. McCann said that the high court’s 2009 decision abruptly changed the standard — from the longstanding requirement under the ADEA that a worker prove that age is just one motivating factor in adverse treatment on the job — to a much higher and tougher to prove standard: that age is the standard motive.

“Older workers now always bear the burden of persuasion in ADEA cases,” McCann emphasized.

According to McCann, House hearing comes at a time when older workers have been battered by the economic downturn caused by the pandemic. Unemployment for workers age 55 and older more than doubled between Feb. 2020, just before the pandemic began, and last month, based on AARP Public Policy Institute (PPI) analysis of federal data.

The number of age 55 and over unemployed has also doubled, up from one million in February 2020, to 2 million last month, according to PPI.

Turning to the Senate…

At press time, a senior Senate aide for Sen. Bob Casey (D-PA), who chairs the Senate Special Committee on Aging, says the Senator is posed to follow the House by throwing the Senate’s POWADA Senate companion measure into the legislative hopper Monday. 

The Pennsylvania Senator clearly understands why he again must push for the passage and enactment of POWADA.  “As more Americans are remaining in the workforce longer, we must recognize and address the challenges that aging workers face. We must make it clear to employers that age discrimination is unacceptable, and we must strengthen antidiscrimination protections that are being eroded,” says Sen. Casey. “POWADA would level the playing field for older workers and ensure they are able to fight back against age discrimination in the workplace.”

RI Senate Tackles High Cost of Prescription Drugs – Herb Weiss

Published in RINewsToday.com on March 15, 2021

In the shadow of the COVID-19 pandemic, as Governor Dan McKee and the Rhode Island General Assembly move to hammer out their Fiscal Year 2022 budget, Senate lawmakers push a package of eight legislative proposals to put the brakes on skyrocketing cost of prescription drugs.

The Senate resolution (2021-S 0560) sponsored by Senate Majority Whip Maryellen Goodwin (D-District 1, Providence), has already been passed and complements the prescription drug affordability package that will be considered next week that would require health insurers to provide coverage, without cost sharing, for colorectal screenings and follow-up colonoscopies when necessary.

The package of legislation aims to protect Rhode Islanders by limiting copays for insulin, capping out-of-pocket expenses for high deductible plans, requiring health insurers to cover preventive colorectal cancer screening, eliminating clauses hidden in pharmacy contracts that prevent a pharmacist from talking about more affordable options, requiring transparent pricing information, importing wholesale prescription drugs from Canada, and creating a board responsible for evaluating and ensuring drug prices are affordable. 

According to Greg Paré, the state Senate director of communications, this package of legislative proposals was developed in conjunction with AARP during the off session before the 2020 Senate session and first submitted last year, but legislation considered last session was limited due to the pandemic and so it did not pass. The legislation has been resubmitted this year with some small modifications and remains a Senate priority.

Last year, AARP along with 14 groups including, the Alzheimer’s Association, the American Cancer Society Action Network, and Aging in Community, urged lawmakers to pass the package of legislative proposals.  Expect to see some of these groups again call for passage of either the total package or specific bills at a Senate Health and Human Services Committee’s virtual hearing, chaired by Sen. Joshua Miller, on Thursday, at 5:00 p.m. For the hearing’s agenda, go to: For hearing details go to: https://bit.ly/3ezofmJ.

Passage of this legislative package would require action by both the Senate and House. At press time, not all of the Senate bills have companion measures in the House.   

Controlling the Skyrocketing Increase of Prescription Drugs

Here are specifics about the Senate’s prescription drug affordability legislative package that will be considered next week by the Rhode Island’s Senate Health and Human Services Committee:  

Legislation (2021-S-0170 sponsored by Sen. Melissa A. Murray (D–Dist. 24, Woonsocket, North Smithfield), would limit the copay for prescription insulin to $50 for a 30-day supply for health plans that provide coverage for insulin. Additionally, the bill mandates that coverage for prescription insulin would not be subject to a deductible.  

Legislation (2021-S 0381)sponsored by Senate Majority Leader Michael J. McCaffrey (D–Dist. 29, Warwick), would cap out-of-pocket expenses for prescription drugs at the federal minimum dollar amount for high-deductible health plans, currently $1,400 for individual plans and $2,800 for family plans.    

The bill (2021-S-0383), sponsored by Senator Goodwin (D–Dist. 1, Providence), would save lives by requiring health insurers cover preventive colorectal cancer screening in accordance with American Cancer Society (ACA) guidelines. This coverage must be provided without cost-sharing and includes an initial screening and follow-up colonoscopy if screening results are abnormal. The ACA recommends people at average risk of colorectal cancer start regular screening at age 45.  

A bill (2021-S -497) sponsored by Sen. Walter S. Felag Jr. (D–Dist. 10, Warren, Bristol, Tiverton) would allow consumers to pay less for their prescription drugs by banning gag clauses sometimes found in pharmacy contracts that prevent a pharmacist from talking to a customer about more affordable options.   

This bill (2021-S-0494) would require pharmaceutical drug manufacturers, pharmacy benefit managers, health insurers, and hospitals to disclose certain drug pricing information. Such transparency would help payers determine whether high prescription costs are justified. This bill is sponsored by Senate President Dominick J. Ruggerio (D – Dist. 4, North Providence, Providence).  

This bill (2021-S-0499), sponsored by Sen. Louis P. DiPalma (D–Dist. 12, Middletown, Little Compton, Newport, Tiverton), would create a state-administered program to import wholesale prescription drugs from Canada, which has drug safety regulations similar to those of the United States. Such programs are allowed under federal rules, with approval from the U.S. Department of Health and Human Services. 

This legislation (2021-S0498) would create a prescription drug affordability board tasked with investigating and comprehensively evaluating drug prices for Rhode Islanders and possible ways to reduce them to make them more affordable. The bill is sponsored by Sen. Cynthia A. Coyne (D–Dist. 32, Barrington, Bristol, East Providence). 

The bill (2021-S 0496) introduced by Sen. Felag (D-District 12, Bristol, Tiverton, Warren) aims to protect consumers from unexpected changes in their health plan’s formularies (list of covered drugs). Under the legislation, formulary changes can only be made at the time of health plan renewal, if the formulary change is made uniformly across all identical or substantially identical health plans, and if written notice is provided 60 days or more before the change. 

Seniors Hit Hard by High Price of Prescriptions

“The high price of prescriptions is having a severe impact on Rhode Islanders, particularly older residents,” said Ruggerio, noting the state’s population is one of the oldest in the nation.  “Many older Rhode Islanders have limited means, and the high cost of prescriptions means people are 

Ruggerio warns that the pharmaceutical industry is not going to address this on its own, so it’s up to the state and federal governments to take action.”

Maureen Maigret, Co-Chair, Long Term Care Coordinating Council, observes that with Medicare paying the tab for costly pharmaceuticals, controlling rising drug costs is a federal issue.  “But this is a big issue to address for those with low and moderate incomes under-insured for prescription drugs,” she says. “I applaud the Senate legislative package aimed at controlling the cost of prescription drugs for Rhode Islanders, says Maigret, who cites the findings of a Kaiser Family Foundation survey that shows one out of four persons take four or more prescription drugs and more than one-third say that have difficulty taking their medication properly due to cost.  “Seniors may fail to get prescriptions filled, resort to pill splitting or skipping doses. Some may end up with costly hospital Emergency Rooms or inpatient visits as health conditions worsen due to the inability to afford their medications, notes Maigret, calling for lawmakers to make necessary prescription drugs affordable for all who need them. Maigret says, “It is time to make necessary prescription drugs available for all who need them.”

“AARP Rhode Island is eager to work with both the Senate and the House of Representatives to pass this important legislation designed to lower prescription drug costs,” said AARP State Director Kathleen Connell. “The high cost of drugs leads families – and particularly older Rhode Islanders on fixed and limited incomes — to often make impossible decisions. No one should have to choose between paying rent, providing food for themselves or their family and vital prescription medications that keep them healthy,” she says.

We look forward to working with legislators from across the state to help improve the health and financial stability of everyone by lowering the cost of prescription drugs. We thank Senate President Ruggerio for once again bringing forth this very important legislation,” adds Connell.

It’s mid-March. Lawmakers turn their attention now to passing the state budget.  Even if the Senate passes every bill in the prescription drug affordability package, the lower chamber must pass companion measures for these bills.  When passed, Governor Dan McKee must sign the legislation to become law.  Right now, it’s an uphill battle and Rhode Islanders must call on their state lawmakers to get on board to support bills to reduce the high cost of pharmaceuticals.  It’s the right thing to do. 

Things that You Should Know 

This meeting will be streamed live online through Capitol TV:

http://www.rilegislature.gov/CapTV/Pages/default.aspx

Written testimony is encouraged and can be submitted prior to 2:00 PM on Thursday, March 18, 2021, in order for it to be provided to the members of the committee at the hearing and to be included in the meeting records. Finally, if you are interested in providing verbal testimony to the committee at this hearing, please go to the following link and make your request by 4:00 p.m., on Wednesday, March 17, 2021:  https://bit.ly/3bIJAs2

Whitehouse Pushes for COVID-19 Senate Proposal to Protect Residents, Employees

Published in the Pawtucket Times on March 1, 2021

As the one-year anniversary of the coronavirus disease (COVID-19) pandemic approaches, U.S Senator Sheldon Whitehouse (D-RI) joins Senators Bob Casey (D-PA), Raphael Warnock (D-GA), Richard Blumenthal (D-CT), and Cory Booker (D-NJ) in introducing a legislative proposal to save lives of nursing home residents and employees and assist with vaccinations.   At press time, over 1.3 million nursing residents and workers in long-term care facilities have been infected with COVID-19 and more than 170,000 have died so far, accounting for approximately 35 percent of COVID-19 deaths nationwide.

Taking a Close Look at S.333

Last week, S.333, “The COVID-19 Nursing Home Protection Act,” was thrown into the legislative hopper.  Initially introduced last Congress, the latest version, now being considered by the Senate Finance Committee, would provide funding to give nursing homes the needed resources to keep residents and workers safe; funding would go towards providing vital infection control assistance and organizing local health and emergency workers – known as “strike” or “surge” teams – to manage COVID-19 outbreaks and care for residents.  At this time no House companion measure has been introduced.

S. 333, introduced on Feb. 22, would provide $210 million for the Secretary of HHS to contract with quality improvement organizations to provide essential infection control assistance to nursing homes. 

Moreover, the legislative proposal would also send $750 million in funding to states to implement “strike” or “surge” teams. States are using “strike” or “surge” teams to ensure a sufficient number of aides, nurses and other providers are available to care for residents. Such teams also help manage COVID-19 outbreaks within a facility, particularly as vaccinations proceed in these settings. Since August, approximately 20 percent of nursing homes have reported each week that they do not have a sufficient workforce to care for residents.”

The impact of the pandemic has been devastating to minority communities, where reports have indicated that facilities serving significant numbers of Black and Hispanic residents were twice as likely to have COVID-19 infections. S. 333 would require the HHS Secretary to collect and make public demographic data on COVID-19 cases and deaths, including information on age, race, ethnicity, and preferred language. 

Whitehouse supports President Joe Biden’s call for the implementation of strike teams in his American Rescue Plan to help address these persistent shortages as well as the collection and dissemination of data on suspected and confirmed COVID-19 cases and deaths by race, ethnicity and preferred language.

Controlling COVID-19 Outbreaks in the Nation’s Nursing Homes

“Nursing home residents and staff have been through a traumatic year,” said Whitehouse who sites on the Senate Finance Committee.  “We need to prioritize vaccinating and caring for the Americans who live and work in these settings.  That means providing additional staff as needed to control outbreaks and making sure every resident and care worker who wants a vaccine can get one.,” said the Rhode Island’s junior Senator who has served since Jan. 4, 2007.

“As more than 170,000 residents and workers in nursing homes and other long-term care facilities have died from COVID-19, it is critical that Congress pass the COVID-19 Nursing Home Protection Act,” says Sen. Bob Casey, Chair of the U.S. Special Committee on Aging.

“This bill would address persistent staffing shortages in nursing homes by utilizing strike teams, promote infection control protocols and require that demographic data is collected on COVID-19 cases and deaths,” notes Casey.

Adds Casey, “The challenge this terrible virus poses are unprecedented and requires an immediate and extraordinary response. That is why my colleagues and I are advancing strategies to give states what they need – funding for ‘strike’ teams to help address staffing shortages in nursing homes and assist with vaccinations in these settings. We have an obligation to protect our most at-risk citizens.”

 “We applaud the efforts of Senator Whitehouse and his colleagues to provide funding for the protection of nursing home residents and staff,” said Scott Fraser, President and CEO of the Rhode Island Health Care Association, an affiliate of the Washington, DC-based American Health Care Association.  “We are especially pleased with the creation of strike teams to address the critical issue of staffing shortages during times of crisis.  This is a suggestion that RIHCA brought to Senator Whitehouse’s attention this past Spring when our homes were in critical need of additional staff due to the pandemic.  We thank him for listening and taking action,” he says.

At press time, 12 Democratic Senators join Sens. Whitehouse, Casey, Warnock, Blumenthal, and Booker, becoming cosponsors to this legislation.  They are: Sens. Maria Cantwell (D-WA), Bob Menendez (D-NJ), Jeanne Shaheen (D-NH), Tina Smith (D-MN), Amy Klobuchar (D-MN), Tammy Duckworth (D-IL), Chris Van Hollen (D-MD), Sherrod Brown (D-OH), Catherine Cortez Masto (D-NV), Jack Reed (D-RI), Maggie Hassan (D-NH) and Mazie Hirono (D-HI). 

A Call for Bipartisan Support

With the Senate now under Democratic control, there is a good chance that S. 333 will be considered by the Senate Finance Committee and if passed sent to the floor for consideration.   During the 116th Congressional session, the former Senate GOP Majority Leader, Mitch McConnell, of Kentucky, who often called himself the “Grim Reaper,” sent Democratic legislation to a legislative graveyard, refusing to act on Democratic legislation, even proposals with bipartisan support.

It’s time for Senate Republicans to support a Democratic proposal that protects the health and safety and the wellbeing of nursing home residents and workers in the nation’s 15,600 nursing homes. 

Partisan politics shouldn’t play a role in Senate Minority Leader Mitch McConnell’s decision to not urge his caucus to support this worthy legislative proposal.  S. 333 truly deserves bipartisan support and enactment, especially during the ongoing COVID-19 pandemic.