Healthcare Employment Lawyers
The healthcare industry is one of the most intensely regulated professions in the United States.
This, in turn, means that healthcare employment laws are extensive, stringent, and regularly enforced.
As a professional who is part of a medical practice, it is in your best interest to ensure that you understand and properly follow employment rules and regulations as they apply to the healthcare industry. This way, you continue to be part of an effective practice, avoiding noncompliance and costly litigation.
How is Healthcare Employment Law Different from other Industries?
Employment laws relating to healthcare professionals are different from those pertaining to other professions.
On top of employment laws that apply to most other businesses, healthcare practices must also comply with additional federal laws and regulations that specifically apply to your industry.
Healthcare employers are subject to a host of employment law issues concerning proper classification of employees, employees unionizing pursuant to the National Labor Relations Act, employees complying with the Family and Medical Leave Act, communications in the workplace, and following federal employment standards.
The following are some examples of common legal issues healthcare employers routinely face:
Tort Reform and Malpractice Claims
The growing number of malpractice claims has elicited an increase in medical malpractice insurance premiums in the United States.
What does this mean for you?
Medical providers are finding it safer to err in the side of caution by administering more medical tests than necessary in order to cover all their bases.
This is to ensure that they cannot be charged with malpractice by a former patient if something was not caught in time for proper treatment. Performing unnecessary tests could show that medical professionals were doing everything in their power to help their patients.
Hospitals are not immune from malpractice claims either.
Employer-hospitals have to take responsibility for wrongdoing on behalf of their employees.
This means that if you are an employer-hospital, and your employee failed to give a patient informed consent about treatment, or failed to perform work under the state or national standards of care, you could be vicariously liable for the employee’s conduct.
This is leaves a lot of room for error and raises a lot of concerns, especially when it comes to large medical facilities that employ hundreds of employees.
Some states have enacted a monetary cap on the amount a plaintiff can recover from a malpractice claim, whereas other states have held that monetary caps are unconstitutional.
Capping recovery on medical malpractice claims has been controversial. So, as an alternative, states have developed several other means of tort reform, such as setting a statute of limitations on claims, limiting claim amounts on attorney fees, and implementing arbitration or dispute resolution rather than litigation.
At the end of the day, it comes down to the Human Resources department at your workplace ensuring that all your employees are fully aware of these issues, and are trained to perform in compliance with the appropriate standards of care.
Increased Unionization of Employees
The major thing that tends to keep employers up at night is the fear of unions.
The National Labor Relations Board (NLRB) is a government agency that enforces labor laws, as they pertain to collective bargaining and unfair labor practices. In 1935, the NLRB enacted the National Labor Relations Act (NLRA), which outlines election procedures for labor union representation, and investigative measures for unfair labor practices.
In 2014, the NLRB revised union election procedures in a way that would, to the disadvantage of employers, promote union representation. These revised procedures eliminate various safeguards that employers once relied on, in order to dispute important issues, before union elections took place.
For one thing, the revisions shorten the span of time between the filing of a petition and the hearing, giving employers less time to identify and address any concerns about unionizing.
Secondly, employers are now required to file a detailed statement on each issue they would like to address at the hearing. An employer’s failure to file a statement is interpreted as a waiver of that issue.
Lastly, the NLRB has now granted officers who oversee the hearing with the authority to limit the issues presented at the hearing. This deprives employers from asking valid questions before the election.
Essentially, employers are now rushed through the pre-election process, and, because of the time constraints and required paperwork, are stifled from educating employees about the possible disadvantages of unionizing.
This is reminiscent of the ruling in Specialty Healthcare, where the NLRB allowed even subsets of employees to form unions, also known as “micro-bargaining units.” Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011).
Specialty Healthcare allowed groups of employees to unionize so long as the group shared an “overwhelming community of interest” that was distinct from the rest of the employees.
Simply put, the NLRB looked to factors such as whether the employees in the group were:
- organized into a separate department,
- had distinct skills and training,
- had distinct job functions,
- had frequent contact with other employees,
- had distinct terms and conditions of employment, or
- if they were separately supervised.
This was a difficult standard for employers to argue against, and as a result, led to a dramatic increase in micro-bargaining units.
Luckily for employers such as yourself, a recent NLRB ruling overturned the standard that Specialty Healthcare set out, and makes it easier for employers to challenge unionization, PCC Structurals, Inc., 365 NLRB No. 160 (2017).
Even still, as an employer, you can try to avoid unionization by ensuring compliance with workplace regulations, such as the Fair Labor Standards Act (FLSA) and Occupational Health and Safety Act (OSHA). You can also self-audit to make sure that your compensation and benefits packages are competitive, and employees have access to a fair grievance procedure.
Guidance for laws on Physicians who are also Employees
How many employees do you have at your practice that are also physicians? Probably a handful, right?
With medical facilities merging and consolidating, the enlarged business acquires employees who are also healthcare professionals.
This slightly muddles employment law waters, because although these employees are healthcare professionals, they are entitled to the same workplace rights as other non-professional employees.
For example, physicians who are employees are allowed to take leave in compliance with the Family and Medical Leave Act (FMLA). Pursuant to the Age Discrimination in Employment Act (ADEA), they are also protected against being terminated or disciplined solely because of their age.
Further, like other employees, healthcare professionals are also protected from discrimination based on classifications of race, religion, disability, sex, sexual orientation, and national origin.
Physician-employees are also allowed to participate in benefit plans under the Employee Retirement Income Security Act (ERISA).
Unlike other employees, however, physician-employees are not entitled to overtime pay under the Fair Labor Standards Act (FLSA).
When some healthcare professionals also act as employees, they are subject to workers’ rights afforded by Section 7 of the NLRA.
Section 7 of the NLRA encompasses a multitude of rights in favor of the employee, among which are the right to join a union, and the right to collective bargaining. In prior notable decisions, the NLRB has extended these rights to medical interns, and medical residency students, as well as fully licensed medical staff, Boston Medical Center Corp., 330 NLRB 152 (1999).
Interestingly, physicians who also serve as employees are excluded from the Section 7 rights to form or join unions if they have an ownership interest in the employer’s practice, are supervisors, managers, or are independent contractors.
How do you determine whether a physician-employee has an ownership interest in the employer’s practice?
The Supreme Court seems to have answered this for us in Clackamas Gastroenterology Association, P.C. v. Wells, 538 US 440 (2003). The Court evaluated factors such as:
- whether the physician-employee could be fired by the organization,
- to what extent the organization supervised the physician-employee,
- whether the physician-employee influenced the organization’s operation, and
- whether the physician-employee shared in the organization’s profits and losses.
Next, how do you classify whether a physician acts in a supervisory or a managerial capacity?
The NLRB looks to supervisory factors such as whether the physician has the authority to:
- discharge, or
- reward other employees.
To determine whether a physician acts in a managerial role, the NLRB looks to whether the physician participates in formulating or effectuating policies for the employer.
If the physician-employee does act in a supervisory or managerial role, they do not have the protected right to form or join unions. As such, it becomes important to assess what kinds of authority you endow upon your physician-employees.
Seeing as how certain entitlements of physician-employees and other employees overlap, while others diverge, employers must use prudence when making and implementing workplace policies for physician-employees.
It is critical to review your workplace procedures, and the physician-employees’ terms and conditions of employment, to ensure they are adequately receiving proper entitlements.
Communications in the Workplace
Section 7 of the NLRA allows all employees (yes, this means unionized and non-unionized employees) to talk to each other, and third parties about their wages, benefits, and terms of employment. In today’s digital age, this also covers employee communications on social media, email or private messaging.
The NLRB has held that healthcare employer policies that generally prohibit employees from expressing negative comments about fellow team members, and require that employees only speak positively about each other, are a violation of employees’ rights. Hills and Dales General Hospital, 360 NLRB No. 70 (2014).
Workplace policies that are restrictive of an employee’s right to participate in activity that is protected by the NLRA are not enforceable. An employer must allow employees to discuss and disseminate information about their employment with each other.
Employers should be wary of policies that have the effect of restricting employees from discussing details of their employment (e.g., wages, hours, terms and conditions) with each other, and with other people.
If you have communication or social media policies, review them. It is imperative that you implement communication policies that are not excessive or inappropriate. It is imperative that any policy guidelines maintain individual privacy rights to avoid potential charges from the NLRB over these restrictions.
Healthcare Employers and the Americans with Disabilities Act (ADA)
The ADA makes it unlawful for employers to discriminate against individuals with a disability who are otherwise qualified for employment. Healthcare employers are subject to the same ADA regulations as any other employer.
For workers with disabilities, the ADA promulgates equal employment opportunities throughout all phases of employment, such as recruitment, training, benefits, wages, termination, promotion, and all other employment related activities.
As an employer, you must provide reasonable accommodation that allows a qualified applicant or employee with a disability to engage in the essential functions of the job.
This can include modifying work equipment, offering modified work schedules, providing interpreters or readers, and making the workplace accessible. If providing reasonable accommodation would be an undue hardship for the employer, the employer doesn’t need to provide this.
You may be wondering what constitutes undue hardship. The ADA defines an undue hardship as an accommodation that is unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business.
Factors taken into consideration when determining whether an accommodation would be an undue hardship include the cost of the accommodation as well as the employer’s financial resources.
Take note that the ADA does not protect those who use drugs illegally. Lopreato v. Select Specialty Hospital-Northern Kentucky (6th Cir. 2016); Raytheon Co. v. Hernandez, 540 U.S. 44, 298 F.3d 1030 (2003).
Individuals who use drugs illegally can be denied employment, or fired from employment.
The ADA allows employers to conduct drug tests and make employment decisions based on the results from those drug test results. Healthcare employers can also deny employment to professionals who have had their licenses restricted as a result of engaging in illicit drug activities, or participating in drug rehabilitation programs.
So, what does this mean for healthcare employers?
To comply with the ADA, it is important to implement hiring policies that are neutral and fair to all qualified candidates.
If this requires retraining your HR department and making sure they are aware of the standards posed by the ADA, do it. If this requires consulting legal counsel to make sure that your workplace policies, practices, and accommodations are ADA-compliant, seek legal counsel. These investments will ensure the compliant operation of your facility moving forward.
If you have been accused of violating the ADA by an employee contact legal representation immediately. Additionally, you should collect all paperwork that
Healthcare Providers and Non-Compete Agreements
Healthcare providers in most states enforce non-compete clauses in employment contracts. Typical non-compete clauses establish geographic parameters within which the physician-employee cannot practice for a particular period of time, in the event the physician leaves their current employer. If the physician violates the clause, the clause also specifies an amount in damages that the physician will have to pay. For example, a non-compete may stipulate that in the event the physician terminates his employment with Main Street Medical Clinic, pediatrician, Dr. John Smith, cannot practice pediatrics anywhere within 15 miles of Miami, Florida, for two years. If Dr. John Smith were to violate this clause, he would have to pay Main Street Medical Clinic $5,000 in damages.
Restrictive covenants in the healthcare industry create a dance of interesting legal conundrums. It is in the employer’s interest to enforce restrictive covenants and ward off competition in a popular industry. However, because of practical demands for healthcare professionals, hospitals and healthcare facilities prefer non-compete agreements that are less restrictive. Less restrictive non-compete agreements carve out an exit strategy for physicians who choose to terminate their employment. These physician-friendly covenants allow the physician to practice in the same community, so long as the physician does not join a specified group of directly competing healthcare facilities, or become a shareholder in a facility that directly competes with the physician’s current employer. These covenants also impose narrower geographic restrictions on exiting physicians (e.g., a geographic restriction of five miles instead of 15 miles). This grants physicians mobility and the ability to continue practicing within their community.
As a healthcare employer, it is important to consider the repercussions of non-compete covenants when drafting your employment contracts. It is best to seek legal guidance during this recruitment process, in order to ensure that you are forging sustainable relationships with your team of employees, and that your business continues to perform optimally in the event any employee exits the practice.
How We Can Help
recognizes the heightened professional standards and employment law issues your healthcare practice is up against. We can counsel you on a diverse breadth of employment law matters, such as drafting employment contracts, reviewing your workplace policies, resolving employee disputes, and representing your position in complex litigation or arbitration.