A Look Ahead: Four Trends Healthcare Employers Should Continue to Watch

(Healthcare Update, No. 4, November 2011)

With the year drawing to a close, this is a good time to examine four significant trends in employment law and consider how to safeguard your healthcare organization from threats associated with them. While this list is not exhaustive, it represents an excellent starting point for ensuring a solid foundation from which to manage risks during the coming year.

The trends include: 1) increasingly aggressive (and overreaching) investigations by the Equal Employment Opportunity Commission (EEOC); 2) issues emerging from employee leave and accommodation requests; 3) more whistleblower and retaliation claims; and finally, 4) continuing challenges emerging from actions by the National Labor Relations Board (NLRB). In meeting these threats, one theme is critical: supervisors must be able to recognize early-warning signs and know when to seek assistance from their human resources representatives.

An Aggressive EEOC

After a record number of EEOC charges last year, an even more serious trend seems to be gaining momentum. The Commission has become more demanding and sometimes confrontational in seeking information from employers, sometimes presenting requests that considerably exceed the scope of allegations contained in the original charge. Investigators are also conducting more onsite investigations and interviewing more employees in the process. This can obviously be distracting and intimidating for workers, most of whom are unfamiliar with the process.

Additionally, the EEOC is emphasizing so-called "systemic" or allegedly widespread violations in employer practices. This means, for example, that language in a single hospital policy could result in the Commission launching a much broader and deeper investigation. Thus, even if that policy has little to do with the underlying charge, the EEOC could broaden its investigation, if it suspects something about that policy could result in discrimination that affects employees across the organization.

For employers, this means it is more important than ever to ensure that policies are up-to-date, accurate, and well worded. Ensure that all employees are familiar with the company's equal opportunity, non-discrimination and no-retaliation policies, and how to voice questions or complaints about workplace issues. It is not enough that these policies are contained in a manual. You must be able to show that workers are aware of them and that the policies are indeed followed.

Supervisors also need to know your policies and when to seek guidance from HR. This is true not just when they are contemplating disciplinary action or a termination, but when they sense grumbling or discontent among the ranks. Additionally, the persons who prepare responses to EEOC charges must carefully review all documents to be submitted, especially if they are only marginally related to the charge. You can certainly expect the EEOC to scrutinize your exhibits, especially policies, with a critical eye.

Tricky Leave And Accommodation Requests

The Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Uniformed Services Employment and Reemployment Rights Act (USERRA) and workers' compensation law can each be complicated when viewed in isolation. When one or more of these laws are implicated at the same time – which often happens – they can become even trickier.

Seasoned HR professionals sometimes find compliance difficult, particularly in the areas of intermittent FMLA leave and requests for accommodation. Even when attempting to err on the side of caution, the process can be especially challenging for supervisors who are responsible for the operational goals of their departments. While attempting to avoid violations of the ADA or FMLA, bear in mind that you may still ask employees to try to schedule leaves in a manner that is less disruptive to the workplace, and that employees who are able to work should be expected to perform the essential functions of their jobs.

Considering recent revisions to applicable regulations, broader coverage, and an aging workforce, leave issues will continue to arise more often. Ensure that supervisors avoid making promises they cannot keep and that they involve trained HR representatives early in the process. This will help manage expectations, ensure compliance, maintain medical privacy and protect the rights of everyone involved.

Unique Challenges Of Whistleblower Claims

On top of laws that were already in place, healthcare reform has added new whistleblower protections for employees. Most states also have their own whistleblower laws, some unique to healthcare workers. The federal False Claims Act (FCA) often crops up in healthcare settings, too. State laws such as Nurse Practice Acts include similar protections, such as no-retaliation provisions. Finally, retaliation allegations continue to appear on EEOC charges more often than any other category. In short, this broad category of claims continues to create headaches for employers and the trend shows no signs of changing.

Such claims are especially challenging for hospitals and other healthcare providers because they can be easy to overlook in a fast-paced environment and the variety of statutes creates a large pool of potential plaintiffs. To reduce risk, it is especially important for employers to publicize effectively all the ways employees can ask questions or lodge internal complaints. It's also critically important for hospitals to conduct (and document) thorough investigations of complaints. Anyone who reports a concern or provides information related to an investigation should be reminded of your no-retaliation policies.

Before taking an adverse action against an employee, you must conduct an objective review of the facts, including whether the employee has recently engaged in any protected activity. Such reviews may not change the final decision, but they can ensure the accuracy and integrity of the process and protect against whistleblower claims.

An Activist NLRB

Besides its edict requiring most employers post an 11" x 17" notice of employee rights under the National Labor Relations Act, the Board continues to take other actions that should be watched closely. Its challenges to policies regarding employee use of social media sites (such as Facebook) have drawn considerable attention. The Board remains poised to question any policy that it believes intrudes upon employees' rights to communicate about workplace issues, whether or not those communications impugn their employer and are posted publicly.

Also, as we reported in a September Labor Alert, the Board recently issued another string of decisions making it easier for unions to organize or remain in place. With unions desperate to attract new members, and healthcare representing such a significant and inviting segment of the economy, expect to see more organizing activity, through traditional and especially corporate campaigns.

It's important for supervisors and employees to know the hospital's position regarding unionization. Supervisors must also understand their responsibility for maintaining an environment where employee concerns are addressed in a fair and timely manner. Employees need to understand the importance of protecting their signatures, because card signing is such a critical part of the organizing process and organizers' tactics are often less than above-board. In an environment where unions are desperately seeking more members and the Board is decidedly pro-labor, healthcare organizations must remain prepared for organizing attempts and carefully follow new developments.

Conclusion

Facing more cost-containment efforts, shrinking reimbursement and ever-increasing regulation, healthcare employers may find it difficult to also manage risks associated with employment litigation. Though these risks are substantial, they are also manageable, especially if you are prepared to deal with significant trends such as those discussed above.

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For more information contact the author at ktroutman@fisherphillips.com or (713) 292-0150.