AHLA's Speaking of Health Law

Top Ten 2022: Health Care Workforce Employment Law Issues to Watch

January 28, 2022 AHLA Podcasts
AHLA's Speaking of Health Law
Top Ten 2022: Health Care Workforce Employment Law Issues to Watch
Show Notes Transcript

Based on AHLA’s annual Health Law Connections article, this special series brings together thought leaders from across the health law field to discuss the top ten issues of 2022. In the fourth episode, Lori Foley, Office Managing Principal, PYA, speaks with Shalyn Smith McKitt, Attorney, Balch & Bingham LLP, about the major employment law issues currently facing the health care workforce. They discuss the Supreme Court’s recent decision on vaccine mandates, COVID-19 exposure liability for employers, challenges related to staffing shortages, and the rise in whistleblower cases related to the pandemic. Sponsored by PYA.

Watch the conversation here.

To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.

Speaker 1:

A H L a is pleased to present the special series, highlighting the top 10 health law issues of 2022, where we bring together thought leaders from across the health law field to discuss the major trends and developments of the year support for a H a . And this series is provided by PPY , which helps clients find value in the complex challenges related to mergers and acquisitions, clinical integrations, regulatory compliance, business value, and fair market value assessments and tax and assurance for more information, visit pya pc.com .

Speaker 2:

Hi, this is Lori Foley with pya. I lead our compliance service line and I'm the managing principal of the Atlanta office here. And I'm excited to be joined by Shalen MCK today. SHA , would you like to introduce yourself?

Speaker 3:

Hi everyone. I'm Shala MCIT . I'm an associate at B and Bigham LL P out of our Birmingham Alabama office. Um, before coming to B , I actually had a background in health law where I was an assistant attorney general for the state of Ohio working on our health and human services section. Then I went to the United States department of health and human services where I was assistant regional council out of the Dallas, Texas office in region six . Um, I also have worked in house , um, at a healthcare technology company. So I've got a few years of experience dealing with health law and health law related issues .

Speaker 2:

Perfect . I'm excited to be here with you today. I , I have a certification in human resources and it, I have found it just , um, permeates all that we do within healthcare . Um, you know, we live in such a highly regulated environment from a healthcare perspective, and then you labor you layer labor law on top of it. And it just , um, it just creates some unique dynamics that you I know have to assist clients with and our clients deal with on a regular basis. Um, we are spending time today talking about healthcare workforce employment, law issues, and I know one of the key issues in the forefront of everyone in the he environment, whether they are sitting in the HR seat or just working with , um, associates and professional staff throughout a hospital facility or a healthcare facility is the vaccine mandate. Uh , as we were talking , um, the Supreme court, did you a favor? I think they, they came down and were able to give an opinion , um, or a ruling last week, right before we were sitting down to have this conversation in an area that's in the forefront of everyone in healthcare related to that. So what were, what were some key takeaways that you , uh , discerned from the Supreme court's decisions related to the vaccine mandate?

Speaker 3:

Right. Yeah. So I'd say that first off , um , anyone who has a chance to read the article I wrote , um , that was published in the beginning of the year , uh , will see that for the first time in my life, I think I was probably spot on knowing that something was going to happen. Um, but I think we all did. Um , there was a lot of litigation surrounding the idea of vaccine mandates and at the time president Biden had had him , um, in place his own order requiring certain , um, um, mandates for testing and or for vaccination. And so , um , very true to the point the Supreme court on, I believe the 13th of this month of January , um, came down with an opinion that has left us, I believe with slightly more guidance, but also with much more confusion. Um, I guess for the basics for anybody who's listening, I'd say the basic idea is the Supreme court upheld , um, vaccine or testing requirements for healthcare workers as imposed by the centers of Medicare Medicaid services and the department of HHS and many of their underlying agencies. However, the Supreme court turned down the rulings requiring testing or , um, vaccination in workplaces for employers that had a hundred employees or more, and the opinion is full of so many interesting tidbits. Um , but I think at the heart of it, what we learned is , and at least when it comes to me, advising clients here in the future is , you know, the Supreme court just said, the government can't tell you to do this. It didn't say that an employer can't decide to impose these requirements themselves. It didn't say that state governments wouldn't be able to do it. In fact, it kind of hinted , um, at least , um, <affirmative> and justice courses just , um , concurrence. It , it kind of hinted to the idea that, you know, the states might be more proper , um , avenue to create these rulings or Congress themselves. If they really think this pandemic , um, requires such regulation needs to issue , um, some rules. And so I think it leaves us open for the rest of 20, 22 to see exactly what happened , um, as a

Speaker 2:

Result. So as, so, gosh, it just tells me then the story is not done, right. That there's still a lot more to come. It sounds like. And in fact, could almost be more challenging and, or convoluted, particularly if an entity is in multiple states, if it truly comes down at the state level.

Speaker 3:

Oh yeah, I think that's exactly right. You know, how California decides to take care of this issue is could be fundamentally different than how Texas decides to take care of the issue. Um, and I think that just ends up , um , maybe encouraging Congress to act as , um, as Supreme court has now requested. Um , and I think at the same time, you know, a lot of this is layered in politics. And so to , and an avoidance of any of the political I deals that are associated with it. I would just say if I'm talking to a client , um, obviously clients in the healthcare space, it's very easy to say, Hey, you know, these rules are in place. You receive federal financial assistance, you are regulated and you must comply with the CMS order . However , for general employers who you are worried about the health and safety of their workforce, I say analyze where you are , right? Um, in situations where you already are dealing with large numbers of employees getting sick or being out due to the pandemic , um , perhaps you do wanna consider some internal policies. Um, but remember that when you implement policies, there are gonna be people who feel a certain way about it. And it's just by learning how to curb expectations when you're individually implementing it . It's a lot easier for, to just say the law says I have to do this. Right. Um , but when we leave 'em to their own devices, it's far easier to be facing a lawsuit from an employee. Who's not happy about something that they're being told to do . So just watch out know your workforce for sure.

Speaker 2:

That makes sense . So I know , um , Medicare and Medicaid participation are key for so many in the healthcare space. What happens if they don't effectively roll out that mandate with their workforce or they don't enforce it,

Speaker 3:

Right . I actually have not read enough to know exactly what the implications are, but I will say in general, at least in my working with Medicare and Medicaid is usually if you fail to implement a rule of regulation, then you can be subjected to either, you know, termination on your agreement, or you can be subjected to possible overpayments that repay back to the agency. So , you know , um , it's, it's one of those things where it's like, if the law says you have to do it implemented immediately, because there could be either financial or just , um , practical , um, effects.

Speaker 2:

Right. And I have to think, you know, looking at some of their other programs, many of their other programs, it's not usually a , a death of day one, right . That if they find an issue, hopefully they would be working through, I know that we need , um , we have such a drastic need for healthcare providers out there. Hopefully they would also work with an organization to help them become compliant if they're not just thinking out loud.

Speaker 3:

Right. Yeah. And so a lot, there is a little bit of a rollout , um , allowance because also the government itself needs to get ready to regulate, and this was all kind of issued under this emergency temporary standard. And so , um, I think that's exactly right. You know, if you don't already have the resources in place to implement these policies or procedures, then you know, there are plenty of companies that like exist to help you do risk assessments to help you , um, you know, analyze and understand how to transform your workplace, to be compliant

Speaker 2:

A lot going on in that regard. Um , any other key thoughts related to the vaccine mandate? You had a lot of other topics in , in the article that I wanted to, to probe on a little bit.

Speaker 3:

Yeah. I definitely think that the biggest takeaway that I would want any of my clients to know , um, from the Supreme court opinion is that , um, things are going to continue to move at this pace. Um, if the court indicating anything, in my opinion, it's that , um, as the pandemic continues and as we evolve , um, just like the CDC guidelines change every five seconds , um, we just need to be ready and kind of keep our on the SW and, and know that once something changes, it's time to adapt. Um, the court in no way said that vaccine mandates will never be okay . Um, but they also didn't say vaccine mandates are awful. Um , and, and because of that, we need to understand that it's always possible that in this year, something new can happen. We could be having this conversation this time next year, and everybody can like be required to have a vaccine. I don't know . So it'll be interesting

Speaker 2:

To watch and see where it comes. Well, you referenced how , um , the CDC guidance was changing, which kind of leads to me in , in your second topic, which was COVID 19, it exposure , liability , um , where employers were, you know, you might be compliant today, the rules might change tomorrow and then you have to pivot. So what were some of your thoughts or your key takeaways on the , the COVID-19 exposure liability for, for employers?

Speaker 3:

Right. So I think this is one of those issues that is not gonna be as big of an issue. Um, as we continue along in the , um , in the pandemic, the idea was that sometimes people would go to work, they would contract COVID 19 and they'd bring it home to their loved ones. And then our loved ones would want to Sue employers based on the exposure that they received from the employee , um, based on the employers failure to , um , make the workplace safe. And some states are actually actively , um, dealing with this issue, right? So you see New York and New Jersey having the most of these cases , um, last year. Um, I think the thought process that I have when it comes to exposure reliability is that , um, one it's dependent on what state you're in here in Alabama. Um , a lot of , uh , I would say you could almost be contributory negligent if you choose to expose yourself to someone who exposes themself every day to COVID 19 , right. And so being in a contributory negligent state, I don't see how any exposure liability , um, claim could ever really work. Um, but on the flip side , I also see how, what employers need to be looking at in these situations is making sure they have the policies and procedures in place to protect themselves on the front end. So if you have, and if you're in a situation where your employees are constantly , um, in close proximity to each other, and , um, you have a mass mandate, I think you're a lot less likely to , uh, be , um , subjected to some sort of lawsuit based on exposure liability. Mm-hmm <affirmative> um, to the same point, maybe you don't have a mass mandate and you have suggested mass protocol for anybody who's not vaccinated, or you have , um , required , um , quarantine procedures for anybody who is exposed as soon as you insulate yourself from , um, the virus in any way through a policy or procedure. I think exposure liability kind of goes away a little bit because it proves that you work to make sure the , the workplace is , um, somewhat healthy. And this once again, just takes us all back to the Supreme court and their OSHA ruling and why it probably would make sense for somebody to come in and , um , mandate everything for us, but , um, we will continue to find

Speaker 2:

Out . So it sounds like if we take what sounds like common sense measures, but you're not expected an employer's not expected to bring risks down to zero, but, but to, to be , you know , considerate, prudent in the environment and , and modify as needed,

Speaker 3:

Right. I would say the only employers that probably are required to, to be , um , more proactive are the healthcare employers. Right ? So yeah, in the hospital system, I , I think that , uh , anybody who's not protecting their work forces is gonna be in a problematic situation, that's challenges. Um , but I think you're right to say in general workforces , um, here at my law firm, for example, there there's no incentive to, to be that proactive. You just have the right policies and procedures in place. Mm-hmm <affirmative>

Speaker 2:

So shifting gears a little bit , I know staffing shortages, particularly in the healthcare space are everywhere. Um, the great resignation that we've all heard about burnout related to COVID, and I know that creates a lot of operational challenges I knew and , and kind of thought through maybe some HR challenges from a recruiting and retention perspective, but you also identified some exposure from a legal perspective. Tell me a little bit about what you were thinking there.

Speaker 3:

Well, I think I always advise , um , my clients to realize that the help of their workforce, it's not just the physical health of their workforce, right? It's the mental health. So the second you start having , um, a workforce that continues to shrink. You have employees that are upset. You have employees who don't want to be at work, and they start to find more problems with the workplace. And those gripes continue to become more and more HR headaches in other ways. And I think in the article I discussed about how , um, there's such a shortage on nurses, that there's a belief that in the near future, we will not have enough nurses in our country. That alone is terrifying because if can't staff adequately as required by federal or state law, and you're a healthcare provider, you're gonna be in trouble. Um, if you, you know, a lot of us kind of think of, you know, how many hours is a nurse in an emergency room allowed to work? Well, if you've only got three nurses on staff now , um, and the law hasn't changed, what do you do to be compliant? Um, that'll also start driving up costs . I mean, the shortage on nurses means that you, as an employer might end up having to pay a little bit more cash , um, in the form of salary and fringe benefits. And, and those things can be extremely concerning to , uh , already devastated healthcare system, as well as a , an already devastated economy.

Speaker 2:

Yeah, we definitely are seeing that with clients where, you know, margins were already razor thin and now staffing costs , not just clinical staff, but across the board, but definitely in frontline clinical staff, the , the increase in cost just to retain employees is , uh , is skyrocketing for lack of a better words .

Speaker 3:

What , what makes this kind of special? Is it it's partially that great resignation we , you were just talking about, but then there's also like the beginning of the pandemic, a lot of our healthcare workers just also died or caught the virus. And so we didn't have the natural turnover that we're used to. Right. I , I mean, you'll see this going back to nursing schools and medical schools, probably for at least another decade, the amount of people , um, that need to be funneled in it's gonna be dramatic. And so I think you're right to say that, you know, this was kind of unpredictable , um ,

Speaker 2:

Right . Well , your reference to, you know, the estimate by 2030 , that there will be a global shortfall of 10 million nurses of more than 10 million nurses. If that's not eye opening , I dunno what it's

Speaker 3:

I know. And I think that we talked about , um , the other day, you know, the kind of rise in travel nursing and the practice of Medica medicine between the states and among state lines. Um, if I'm a employer and I know it's already hard to keep nurses, travel nurses get paid so well , uh, there's more of an incentive know to go out and become a travel nurse than there is to work inside a hospital system or a health system of any sort. Um, what do you , how are you retaining a workforce at that point, if people are able to now in such a transient world , um , their job in other ways. And so it'll definitely be one of those things that , um, healthcare employees are going to have to really think about.

Speaker 2:

Yeah. I think, you know, I've always said healthcare is not for the faint of heart and that, that piece continues just with some new, maybe not new layers, but exacerbated layers. Um, I think, and , and just seems to be magnified one , uh , last topic that you had in your article. And , and we can't, we can't leave a compliance, oriented conversation without talking about whistleblowers. And a lot of times we think about it in , um , in , in fraud waste and abuse and, and that regulatory environment, but obviously there are whistleblower, you know, scenarios in employment law. What are some things you thinking about and advising clients on related to that?

Speaker 3:

Yeah, it's so weird, but COVID 19 . Once again has plague this issue. We're seeing a rise in cases where employers are, for lack of a better term discriminating against employees based on their feelings related a pandemic. So, you know, what do you do when an employee, you know, complains about the fact that your workplace is not adequately sanitized or , um, people aren't falling , the mass mandate that you implement and someone , um, is a whistleblower and speaks out on it. Um, usually retaliatory conduct is not protect is not protected. Um, we are dealing with certain types of discrimination, right? Um, the easiest way to explain that is, you know, if , if an employer fires me because I'm pregnant , um, that runs , um , a foul of the pregnancy discrimination act or because I'm African American , um , that runs with many women discrimination laws . Um , well here, there's not some overarching law protecting an employee who is vocal about , um, the lack of health and safety in the workplace. And so , um, some states, I think it was New York. I can't actually remember we've, we've talked so much. And so many things have changed. Um, New York was kinda the first , um, state to really consider how whistle blowers are being impacted. And I think that was because of how New York ended up decimated by the pandemic, the quickest mm-hmm <affirmative> . Um, so it was really easy for somebody in , in the middle of, you know, 2020 to say, oh, no, I'm not coming in. You guys have not figured out what you're doing. The pandemic is killing our whole city. Um, what are , what I'm not doing that then the employer fires . And so as a , as a result , um, and especially with like lower the shortage of P PPE in the beginning of a pandemic, all of that kind of just created this big issue that was ready to explode. So as a result, at least in New York and a few others states , we're seeing the state legislators start to create protections for whistle blowers when it comes to health and safety measures , um , being reported. But until that is resolved for everyone , um, it's best for, you know, I would say your HR , um, departments to start to, to implement like, you know, suggestion boxes or places for their comments and concerns to be , um, taken , um, anonymously, just so , um, you don't face any litigation in the ,

Speaker 2:

Any , any surprises there. Yeah. I know when we do compliance programming, we are looking for communication avenues. You know, one of the seven elements of a , of an effective compliance program are for employees to raise concerns and in a non retaliatory manner. And I think this is just one other area for organizations to think about when they're thinking about that retaliation and maybe some workforce education along the way, because to your point, HR may be thinking about it, but if it's not disseminated out and the supervisory staff are not educated on it, they may be making employment actions that are on this basis that may put the organization at risk without even engaging HR, you know, at that point,

Speaker 3:

Why percent ? I think , um, it's, it's always kind of funny when I'm talking to clients and I'm like, I know this person was a pain in your butt <laugh> , but you can't just outright get rid of them . Right. And , um, in this context specifically, since everything is so unsettled, I think it's very important to educate everyone from the bottom up on , you know, how these changes are happening.

Speaker 2:

Very good. Well, any other key takeaways or items that you know were kind of top of mind for you as you wrote the article and, and share it with our colleagues that we didn't cover? No,

Speaker 3:

I think we actually touched on everything that we talked about in the article. I think 2020 you is going to be a very interesting year for employment law and healthcare and the, the mix of the two. I hope by this time, next year, we've got a real answer on vaccine mandates. Um , <laugh>

Speaker 2:

We need to come back together and have a retrospective review to see what came to be, but I , what I'm hearing loud and clear is the story is not done. There is more to come . Exactly. Definitely. I , I look forward to having that conversation in the future. I do too well. I've had fun and enjoyed , uh , chatting with you on these topics and hopefully get the opportunity to do so again, and , uh, this has been beneficial to our colleagues and listeners out there. So thank you. Yeah. Thank you.

Speaker 1:

Thank you for listening. If you enjoy this episode, be sure to subscribe to a H L a speaking of health law, wherever you get your podcasts to learn more about ALA and the educational resources available to the health law community, visit American health law.org .