13 May 2022
Health Care Workforce Employment Law Issues to Watch in 2022
By Shalyn Smith McKitt | Balch & Bingham LLP
Healthcare Workforce Issues
We thought 2020 was unprecedented, but healthcare employers were faced with new challenges in employment law as the world adapted to COVID-19 in 2021. And 2022 won’t be any different.
The introduction of vaccines in 2021 led to workforce dilemmas and the shift to the new “normal” called for regulation of the industry regarding the safety and welfare of health care employees. In 2022, four issues for health care employers to watch are discussed below.
As 2021 came to a close, the issue of requiring employees to be vaccinated became even more contentious than before. As a result, health care employers will most likely find themselves torn between implementing vaccination policies and foregoing them in 2022. In September 2021, President Biden ordered vaccination mandates for the federal workforce, federal contractors, and private sector businesses with more than 100 employees.
The administration also announced that it would require COVID-19 vaccinations for health care workers in hospitals and other facilities and settings that participate in Medicare and Medicaid. This order came shortly after litigation in multiple states where hospital employees refused to follow hospital policy requiring COVID-19 vaccination.
Under an interim final rule issued in November 2021, CMS required health care providers to establish policies to ensure all eligible staff get vaccinated by January 4, 2022. However, federal courts in Missouri and Louisiana granted preliminary injunctions blocking the administration from enforcing the vaccination requirement for health care workers nationwide after finding the states challenging the IFR were likely to succeed on their claim that CMS exceeded its statutory authority.
The Fifth Circuit later narrowed the scope of the injunction so that the administration is now enjoined from enforcing the mandate in 24 states. As of this writing, the administration had asked the Supreme Court to allow the vaccination mandate for health care workers to go into effect in those states while appeals proceed in the two challenges. In 2022, health care employers will have to monitor how these challenges play out in court or decide to move forward with vaccination requirements on their own.
COVID-19 Exposure Liability
2021 marked the beginning of lawsuits from family members of health care workers who contracted COVID-19 when at work. Cases in New Jersey and Illinois demonstrate just how unexpected these lawsuits were, and likely will be in the coming year. Essentially, most workforce members are usually prohibited from bringing suit against their employers for contracting a disease at work under workers’ compensation laws. But, when a family member is exposed due to an employer’s negligent management of the disease in the workplace, the employer is exposed to liability. Employers will need to ensure they follow government guidelines and manage the spread of COVID-19 to avoid these lawsuits.
Healthcare Staffing Shortages
In 2022, the health care workforce shortage will probably continue its spiral, and health care providers will be faced with more challenges than ever before. It is currently estimated that by 2030 there will be a global shortfall of more than 10 million nurses, for example. Research shows that COVID-19 has impacted the health care workforce both physically and mentally. Employees are not only more susceptible to contracting COVID-19, but they are also prone to increased stress and mental health issues.
Health care providers have to take time in 2022 to focus on retaining and growing their workforces before it is too late. Organizations like the World Health Organization and the American Hospital Association have published widely on this topic and can be great resources for health care employers.
Whistleblower Cases on the Rise
States are reacting to the rise of whistleblower claims related to COVID-19, and 2022 will likely signal a new era for these claims for health care providers. Generally, under federal law and most state laws, employers cannot retaliate against an employee who reports a practice that threatens public health and safety. However, in 2020 and 2021 these complaints skyrocketed due to employees with concerns regarding the availability of personal protective equipment (PPE), the implementation of facemask policies, or lack of COVID-19-related training. Cases in California, Texas, and Illinois included employees who raised these kinds of concerns and were ultimately terminated. New York has already started to react to this phenomenon by updating its labor laws in 2020, but other states are sure to follow.
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Copyright 2022, American Health Law Association, Washington, DC. Reprint permission granted.