By Roger W. Feicht
2020 was a year of change, especially for the healthcare industry. While healthcare professionals are wisely focused on battling the COVID-19 pandemic, they should also take a moment to dust off their employee handbook. Why? Just like electronic health records software, employee handbooks need regular updates to ensure they are compliant with new laws and provide the fair and consistent guidance that employees desire.
Some businesses use a form employee handbook or template policies they found on the internet. Some businesses have robust policies, but only require new hires to sign a form acknowledging receipt of the policies, and then fail to actually consult those policies when issues arise. These are missed opportunities. Putting some thoughtful effort into updating and enforcing employment policies will provide critical guidance for management, improve employee morale, and minimize potential legal liability. Here are three critical suggestions for updates to employee handbooks that healthcare providers and professionals should consider right now.
OSHA’s Emergency Temporary Standard
All healthcare providers are (perhaps painstakingly) familiar with the Center for Disease Control’s guidance regarding COVID-19. The CDC has guidance specific to the healthcare workers available at: <https://www.cdc.gov/coronavirus/2019-ncov/hcp/index.htmll>
However, many healthcare providers are not yet fully compliant with the “Emergency Temporary Standard” (ETS) from the Occupational Safety and Health Administration (OSHA). This guidance went into effect on June 21, 2021, and is available for free at <https://www.osha.gov/laws-regs/regulations/standardnumber/1910#1910_Subpart_U>. Under the federal laws enforced by OSHA, including the ETS regulations, healthcare providers are legally responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm. Accordingly, healthcare professionals should ensure that their policies regarding COVID mitigation are consistent with ETS to avoid a potential investigation or penalty from OSHA. Importantly, the detailed ETS has different standards depending on whether a healthcare provider’s staff is fully vaccinated and whether a particular facility is providing “direct patient care,” so they should be reviewed carefully with legal counsel.
Work from Home and Medical Leave
While healthcare facilities have critical staff who provide patient care, they also likely have employees working in administrative roles that can successfully perform their duties while working remotely. Further, labor shortages have caused a competitive job market where many applicants have an expectation that working from home in some capacity will be an option for certain job positions. Therefore, it is essential that healthcare providers have up-to-date policies on remote work. These policies should address when remote work is permitted, how approval must be obtained, and whether the employee or employer will pay for resources such as computer equipment and software licenses.
Additionally, health care providers might need to allow an employee to work from home as a reasonable accommodation under the Americans with Disabilities Act (ADA), assuming the employee can still perform his or her essential functions.
With reported cases of mental health issues (including depression and anxiety) increasing nationwide, requests for medical leave are expected to be high in 2021. Both the ADA and the Family and Medical Leave Act (FMLA) have provisions that can require medical leave under certain circumstances. All healthcare providers should also double-check that their employee handbooks include detailed policies on providing time off of work for medical reasons that are consistent with the legal requirements of both the ADA and FMLA.
Finally, healthcare providers should check that their employee handbooks include comprehensive anti-discrimination and anti-harassment policies. Many anticipate that claims for race or gender discrimination will remain high in 2021. Any employee handbook should have a separate policy that prohibits discrimination and harassment and includes specific procedures for reporting and investigating such allegations. Anti-discrimination and anti-harassment policies, when consistently enforced, are the first line of defense to those claims. Further, the U.S. Supreme Court ruled just last year that Title VII of the Civil Rights Act of 1964 (the federal law prohibiting discrimination on race, gender, and other protected categories) also protects gay, lesbian, and transgender employees from discrimination in the workplace. Accordingly, anti-discrimination policies may need to be updated to recognize this new change to the law.
As healthcare professionals continue to support healthcare providers with battling COVID while maintaining high levels of patient care, they should also take some time to update their employee handbooks to ensure they are legally compliant and prepared for when future issues arise.
About the Author:
Roger Feicht is a Shareholder Attorney with the Gunster law firm in West Palm Beach, Florida. Roger regularly advises clients regarding employment law and litigation matters. Roger can be contacted at [email protected].
More information is available at https://gunster.com/staff/attorneys/roger-w-feicht/