Even though COVID-19 numbers are generally trending upward, employers in these settings continue to face intense scrutiny and a slew of questions about the pandemic. Other emerging issues have little to no bearing on the pandemic. Some of these issues are more pressing than others, but they all require ongoing attention.
Federal Agencies’ COVID-Specific Directives
The Centers for Medicare & Medicaid Services (CMS) is still in charge of overseeing and enforcing vaccination requirements for all staff at CMS-certified facilities.
Furthermore, the Occupational Safety and Health Administration (OSHA) has not only announced a permanent COVID-19 Standard for healthcare settings, but it has also increased its scrutiny of certain hospitals and skilled nursing facilities. COVID practices and protocols are still considered high-priority items by CMS and OSHA.
The EEOC is on the lookout for different types of pandemic-related discrimination.
The Equal Employment Opportunity Commission (EEOC) is debating a number of COVID-19 scenarios, all of which it warns may result in unlawful discrimination.
Disputes over vaccine policies at work are one of these scenarios. Employers began receiving unprecedented numbers of requests for accommodations (exemptions) based on employees’ religious beliefs after vaccines became widely available to healthcare workers in early 2021, a topic that we have discussed in various Insights.
Potential Discrimination Against Caregivers in the News
In addition, the EEOC recently issued detailed guidance identifying circumstances in which a person with caregiver responsibilities may face unlawful discrimination. Even though discrimination based solely on caregiver status is not prohibited, the Commission is clearly aware of the issue.
While the total number of discrimination charges filed decreased in 2021, the EEOC’s Annual Report revealed an increase in COVID-related charges, the majority of which cited alleged breaches of the Americans with Disabilities Act (ADA).
More Emerging Mental Health Issues
According to EEOC data, allegations of discrimination based on mental health reasons have increased significantly among all ADA-related charges, accounting for nearly one-third of all charges alleging disability discrimination. Anxiety and post-traumatic stress disorder (PTSD) were the most frequently mentioned conditions among those charged.
Since the early stages of the pandemic, we have been discussing and advising on the mental health aspects of the pandemic. Employers should therefore review their policies and resources, keeping an eye out for opportunities to respond to employees who are suffering from stress or mental health disorders.
Announcement by the National Labor Relations Board
If all of these issues weren’t enough to worry healthcare employers, the National Labor Relations Board’s (NLRB) general counsel recently defied nearly 75 years of legal precedent by issuing a memo that severely limits employers’ free speech rights in the face of union organizing activity. Employers who want to keep their union-free status should take note of this development and consult with their legal counsel to determine what actions they should take now.
To summarise, it is still a challenging time for healthcare employers. However, industry veterans have grown accustomed to this. These and other issues continue to present difficulties that must be overcome.