It’s no secret that the healthcare industry still faces a long recovery from provider burnout and worker shortages. Hospitals and related employers certainly do not need any more labor-related challenges, but the NLRB has other plans. This ailing industry will soon be required to adhere to a broader joint employment standard – meant to streamline unionization processes at greater cost to businesses – that will increase employer liability.
The board’s new Final Rule has been nudged back to a Feb. 26 effective date amid legal challenges. If the rule survives, two businesses only need to share the ability to control one of many “essential terms and conditions of employment,” including hiring, scheduling, compensation, workplace rules, and more (regardless of whether they execute that control) to be classified as joint employers.
The danger to healthcare: Businesses might be jointly liable for unfair labor allegations from workers who they don’t even employ. Under the new Board rules, companies can be forced to collectively bargain with a union that doesn’t represent its own workers in certain circumstances. Healthcare providers stand to be disproportionately impacted due to the heavy use of contract workers and temp workers (especially in short-staffed times), along with outside companies like dining services.
Seniors are most at risk in this industry: Senate Republicans have expressed concern that the Final Rule will cause the most harm to senior living facilities, which frequently rely upon staffing agencies and outside specialists to offer 24/7 residential care to patients. Some facilities even operate as franchises under umbrella corporations, which could be required to bargain with a union that organizes a single location.
What can be done to limit joint employment findings? Unfortunately, long-term care facilities might need to alter their operations and working conditions substantially. They must also carefully evaluate all existing contracts with outside services to determine potential liability. Facilities might even cut ties with outside agencies and limit services, which would lead to a decline in the overall quality of care.
An alternative strategy: Facilities might choose to cede all control and oversight over groups of workers regarding specific functions -– including hiring, firing, scheduling, payroll processing -– to an outside vendor to avoid a finding of joint liability. This isn’t ideal, yet it might prevent undue risks.
A complicated affair: Each employer must carefully consider their own circumstances to decide the level of risk they are comfortable with during cases of joint employment. Healthcare providers will also need to achieve a meeting of the minds of outside agencies and contractors to decrease potential liability for all parties.
An inevitable outcome: Sadly, this Final Rule will lead to some healthcare providers offsetting increased liability costs by cutting jobs in an already short-staffed field. It doesn’t take any imagination to realize that this could quickly impact patient and worker safety in a negative way.
Also, a joint employer finding adds the risk of being impacted by an outside union’s whims to strike. Here are only the latest notable healthcare walkout updates:
- A 7-day strike began at four Los Angeles-based Prime Healthcare hospitals.
- A 3-day strike will soon begin for nurses at Cedars-Sinai Marina del Rey Hospital.
- A 2-day strike has been planned for nurses at Saint Louis University Hospital.
The new reality: Risk management could soon feel like your second language as employers size up their workplaces to tackle the latest curveball from Biden’s NLRB.
