We know the major personnel issues challenging our friends in the health care industry: labor shortages; competitive wages; and rising costs. But what employment and labor legal issues do (or may) health care organizations face in coming months?

  1. Accommodation Requests as Remote Work Demands Continue. Throughout the last two-plus years, telework became the new normal for many non-clinical staff. Although the dust is beginning to settle, many employees still want to work from home, often because they became accustomed to doing so. Accommodation requests have therefore continued, particularly among administrative personnel. Employees are requesting extensions to their work-from-home privileges, often on the basis of stated medical needs. As a result, health care employers need to ensure compliance with their obligations under the Americans with Disabilities Act, the Rehabilitation Act and state law. The obligation to accommodate disabilities can present sticky legal questions and so do prohibitions against retaliation for seeking accommodations. Written remote work policies are worth considering and the consistency in implementing and enforcing employer accommodation policies can help to avoid lawsuits or at least mitigate the exposure.
  2. Health Care OSHA Obligations Revisited. The Occupational Safety and Health Administration (“OSHA”) “withdrew” its health care-specific Emergency Temporary Standard in December 2021. That disposed at least of federal standards expressly requiring, among other things, written COVID-19 workplace plans, the appointment of a COVID-19 safety coordinator, daily and pre-shift screening and paid leave of up to $1,400 per week. But OSHA plans the development of a permanent health care standard. When it will emerge now is unclear. What will the rule require? We know that OSHA is taking under consideration comments on a number of important potential obligations. First, will it require that health care employers comply with CDC guidance? What paid sick leave obligations should be mandated? Will health care employers be obligated to give paid time off for vaccinations and, if so, how many hours? These are just some questions under consideration. In the meantime, OSHA urges health care employers to consider their obligations under its “general duty” clause, which requires workplaces to be “free from recognized hazards that are causing or are likely to cause death or serious physical harm” and leaves health care organizations vulnerable to continued uncertainty about its workplace safety requirements. This is an area to watch but employers should be especially cautious of employee workplace safety complaints and on the watch for OSHA and state investigators.
  3. Union Organizing and Activity in Health Care Under a Pro-Labor NLRB. It only makes sense that COVID-19 burnout and staffing problems will drive continued union organizing and other activities in the health care industry. Axios reports on many of the campaigns under way calling on health care employers to improve staffing ratios and worker pay. The National Labor Relations Board, under the Biden administration, now holds a Democratic majority and a pro-labor General Counsel now supervises enforcement of the National Labor Relations Act across the country. Among other things, the new General Counsel hopes to erase decades of precedent that has allowed employers to hold mandatory “captive audience” meetings with workers in which the employer expresses its opinion on unions. She also has asked the Board to require that employers recognize and bargain with unions only on an alleged majority of authorization cards indicating support for a union unless the employer can show that it has a good-faith doubt about the majority status. Watch for these changes to occur.

No one has a crystal ball, but watching legislative and agency activity helps us to see where the minefields are being laid. Hall Render always keep an eye on the labor and employment legal issues facing health care organizations.