With 2023 underway, healthcare organizations continue to prioritize employee retention and recruitment in the face of economic trends impacting the healthcare industry, such as significant staff shortages, employee turnover, a marked increase in healthcare professionals leaving the industry, and rising inflation.

Several healthcare employers throughout the country are increasing employee wages, organization-wide, either of their own accord or to comply with state or local pay laws.

As previously reported, in June 2022, the City of Los Angeles approved an ordinance to raise the minimum wage for certain healthcare workers at privately-owned healthcare facilities within the city to $25 per hour. Several other cities in California followed suit with similar ordinances.

In late fall last year, New York announced significant pay increases and upgraded nursing titles for nurses employed by 15 state agencies. The wage increases vary dependent upon the nurses’ titles and what shifts the nurses work (with night shift employees receiving a larger wage increase), but the changes impacted approximately 6,500 nurses employed by New York state. Such changes were in addition to the geographic pay increases implemented for nurses earlier in the year.

Baltimore-based Life Bridge Health raised the minimum wage from $15 to $16 per hour, effective November 2022. The wage increase will apply to approximately 2,500 positions across the hospital system.

Winston-Salem, North Carolina-based Novant Health raised its minimum wage from $15 to $17 per hour, effective March 3, 2023. The wage increase will apply to more than 4,400 employees across Novant’s 15-hospital system.

Healthcare industry employers who have yet to consider any organization-wide wage increases but who are also experiencing staff shortages, employee turnover, and rising concerns relating to employee retention should be aware of what other organizations are offering to remain competitive in the already-strained healthcare market. Wages are only one important factor impacting employee wellbeing. As workplace trends are also shifting with a renewed focus on mental and behavioral health, healthcare employers may also want to consider offering creative benefits to address employee welfare, retention, and burnout, such as providing employees with access to onsite clinics, population health management services, and/or other wellness programs with an emphasis on mental, financial, and behavioral health. Adopting benefits like this may provide healthcare employers a competitive edge in this dynamic market for talent.

Stay tuned for further updates regarding healthcare workplace trends, and please do not hesitate to contact the Healthcare Group at Jackson Lewis if you wish to discuss these topics.

A significant concern for managers of remote workers is the ability to engage, manage and monitor performance and productivity – and some healthcare employers have turned to technologies like tracking employee keystrokes, capturing screenshots, and on-camera requirements for employees during work hours.

This has caught the attention of the National Labor Relations Board’s General Counsel Jennifer Abruzzo, who recently issued a memorandum seeking to broaden of the National Labor Relations Act (the “Act”) and limit the electronic surveillance of employees.

“An issue of particular concern to [her] is the potential for omnipresent surveillance and other algorithmic-management tools to interfere with the exercise of Section 7 rights by significantly impairing or negating employees’ ability to engage in protected activity and keep that activity confidential from their employer, if they so choose.” Memorandum GC 23-02, “Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights” (released Oct. 31, 2022).

Under well-established law, an employer can be found to violate Section 8(a)(1) of the Act if it implements new monitoring technologies in response to union and other protected activity, uses existing technologies to discover such protected activity, including by reviewing security-camera footage or employees’ social-media accounts; or creates the impression that it is doing such things.

In the memo, GC Abruzzo requests the Board adopt a broader legal framework for determining the lawfulness of monitoring employees through electronic means, citing concerns it could interfere with organizing efforts. GC Abruzzo urged the Board to find that employers presumptively violate the Act if their surveillance technology and management practices, as a whole, tend to interfere with or prevent employees from engaging in protected concerted activity. The memo further suggests that if an employer establishes “narrowly tailored” practices to address “legitimate business needs,” the Board would weigh the employer’s interests against its employees’ interests. Even in cases where the employer’s interests outweigh the employees’ interests, the GC would require employers to disclose how employees are being monitored, absent special circumstances. Notably, the scrutiny called for in the memo applies to all employers subject to the Act, not just employers with union-represented workforces.

In addition to the flurry of labor activity in healthcare, this is one more area to keep an eye on as healthcare employers focus on growing and managing remote workforces. Please contact the Jackson Lewis attorney with whom you usually work or a member of our Healthcare Group if you have questions or need additional guidance.


The growing use of healthcare mobile applications and websites—and the associated use of online tracking technologies—raises privacy concerns under the Health Insurance Portability and Accountability Act (HIPAA) that developers of such applications and healthcare organizations should keep in mind. Indeed, there has been an uptick in litigations filed across the country involving healthcare mobile application and website tracking technologies in which plaintiffs have alleged wrongful uses and disclosures of patient data collected by these technologies, regardless of whether such collection was inadvertent. In December 2022, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) issued a bulletin with guidance concerning the use of online tracking technologies by covered entities and business associates under HIPAA.

To learn about online tracking technologies, HIPAA obligations related to these technologies and the OCR’s guidance to HIPAA-covered entities concerning the use of these technologies, read the Workplace Privacy, Data Management & Security Report here.

Much is being written about “remote work” – is it productive, will demand for it continue or be curtailed in a recession, is cybersecurity compromised, does it inhibit workplace culture, collaboration, etc. Lots of questions, few clear answers. Read more at our Workplace Privacy, Data Management & Security Report.

As we leave 2022 behind us, here are seven things healthcare employers should watch for in 2023.

  1. Medical Residents and Interns Unionizing.  Yes, you read that right.  2022 saw organizing among these groups on both coasts.  This is happening as we see a resurgence in organizing among graduate students and even undergraduate student employees.  It will be important for employers to include medical residents and interns in their programs addressing employee engagement and wellness.
  2. Increased Focus on The Application of Title IX to Medical Residency and Other Educational Programs.  Title IX prohibits discrimination on the basis of sex in federally funded education programs.  We have seen a growing number of claims brought against academic medical centers alleging violations of Title IX.  Therefore, it is prudent for healthcare providers engaged in education programs to be familiar with the current and proposed Title IX regulations.
  3. Cybersecurity Threats Continue.  The data is not in yet, but 2022 likely set a new record for cyber-attacks in the healthcare sector.  Back in October, the U.S. Department of Health and Human Services’ (HHS) Office of Civil Rights cited a cybersecurity firm report that found a 69% increase in cyber-attacks targeting healthcare in the first half of 2022 compared to 2021.  Healthcare employers should review their HIPAA and other data security policies, as well as their incident response plans.
  4. Regulators Scrutinizing Telemedicine.  In September 2022, HHS’ Office of Inspector General issued a report recommending the Centers for Medicare & Medicaid Services (CMS): “(1) strengthen monitoring and targeted oversight of telehealth services, (2) provide additional education to providers on appropriate billing for telehealth services, (3) improve the transparency of ‘incident to’ services when clinical staff primarily delivered the telehealth service, (4) identify telehealth companies that bill Medicare, and (5) follow up on the providers identified in this report.”  These recommendations highlight the importance of training supervisors on how to respond to reports of improper billing as well as refresher training for the entire workforce on appropriate billing and documentation.
  5. Expect a Permanent OSHA Standard Covering COVID-19 for Healthcare Workers.  On December 7, 2022, OSHA sent a draft of the permanent rule to the White House for review.  The text has not yet been released, but the rule is expected to be effective in early 2023. 
  6. Expect More Strikes.  One industry publication noted in November that there already had been 18 healthcare worker strikes in 2022.  According to another report, contracts covering at least 1.6 million employees will expire in 2023.  Nothing suggests the factors fueling those 2022 healthcare worker strikes will be remedied soon enough to make 2023 a year of greater labor peace.  Therefore healthcare employers should consider doubling down on efforts to improve employee relations, as well as strike contingency planning.
  7. Staffing Challenges Will Continue.  While many healthcare employers report a decreased reliance on temporary staff, recruiting and retaining caregivers remains a challenge.  Recent reports indicate many clinicians are considering leaving healthcare.  This phenomenon means employers will continue to explore alternative ways to maintain staffing levels, including creating in-house staffing agencies as well as going to outside agencies.  In this environment, healthcare employers need to keep their eye on potential changes to the joint employer rule under the National Labor Relations Act and to the standard for determining whether a worker is an employee or “independent contractor” under the federal Fair Labor Standards Act.

Members of the Jackson Lewis Healthcare Industry group work with clients on all these issues daily. Please contact the Jackson Lewis attorney you work with or one of our industry group members if you have any questions about these topics.

October is National Cybersecurity Awareness month, and the HHS Office for Civil Rights (OCR) has provided a timely reminder for HIPAA covered entities and business associates to have a written incident response plan! To learn why another policy is needed, what an incident response plan needs to include, and the reporting obligations, read the Workplace Privacy, Data Management & Security Report here.

Amendments to the Illinois Nurse Agency Licensing Act (HB 4666) aim to promote transparency and protections for healthcare workers, but, in practice, they make it more difficult for nurse staffing agencies to retain employees.

Under the new law, staffing agencies doing business in Illinois can no longer enter into covenants not-to-compete with nurses or certified nursing assistants. Similarly, nurse staffing agencies are prohibited from requiring any “buy-out” fee, placement fee, or other form of compensation if the nurse is hired by a healthcare facility. The law applies only to agreements entered into after the law’s effective date of July 1, 2022, so prior existing agreements need not be modified. Read more.

At the start of June 2022, the City of Los Angeles approved an ordinance to raise the minimum wage for certain healthcare workers at privately-owned healthcare facilities within the city. Since June, more cities have passed nearly identical ordinances. There is also a push for a California statewide healthcare minimum wage. However, no formal bill has been proposed and the current legislative session ends on August 31st. For more information, see this post at our California Workplace Law Blog.

While people may be familiar with many of the rules relating to the admission of service animals into public venues, do the same rules apply when a patient or visitor seeks to enter a hospital, medical office, or other healthcare facility accompanied by a service animal?

Most healthcare facilities, particularly hospitals, have “no pets” policies that forbid patients and visitors from bringing animals into the facility. Given the requisite sterile environment at healthcare facilities and the ongoing treatment of patients with varying degrees of medical ailments, one might easily presume that a different standard and different requirements apply to the admission of service animals. Generally speaking, however, a hospital must allow disabled patients and visitors to be accompanied by their service animals just like other places of public accommodation. This includes allowing service animals access to patient rooms and anywhere else in the facility where the public and patients are allowed to go. Service animals must even be permitted to accompany their handlers in an ambulance unless it would interfere with the ability to treat the patient effectively. Notably, a healthcare facility cannot exclude service animal access on the grounds that staff can provide the same services. If a patient is admitted to a hospital but unable to care for their service animal, the hospital is required to permit a family member or friend to come to the hospital to provide care for the service animal so that the handler and service animal are not separated. Under limited circumstances, the healthcare facility can place the service animal in a boarding facility until the patient is released, but must first give the patient the opportunity to make alternate arrangements for the service animal’s care.

Even within this framework, there are limits on what types of animals must be permitted. For public access purposes, a service animal is limited to a dog or miniature horse that is trained to perform a task or take a specific action when needed to assist the disabled individual. A person who has epilepsy, for example, may have a dog that is trained to alert at the onset of a seizure and to keep its handler safe during the seizure. Emotional support, therapy, comfort, or companion animals are not considered to be service animals under the ADA, unless they have been trained to perform a specific job or task for a disabled person. The handler cannot be required to provide any sort of registration or certification documentation to establish that the animal is a “service animal,” but the healthcare facility may ask the handler two questions:

  1. Is the dog (or miniature horse) a service animal required because of a disability?
  2. What work or task has the animal been trained to perform?

Some state or local laws and ordinances may extend coverage for public access purposes to emotional support animals under certain circumstances. Those laws should be considered before denying access to healthcare facilities by patients and visitors with service animals.

Please contact the Jackson Lewis attorney with whom you usually work or a member of our Healthcare or Disability, Leave and Health Management groups if you have questions or need additional guidance.

The onset of the COVID-19 pandemic was sudden and devastating, and even as the threat levels subside, the fallout endures. To be sure, the healthcare industry has long been on the forefront of battling the threat to public health posed by COVID-19. While there has been a broad and varied governmental response to the multitude of concerns arising out of COVID-19, a significant component of that has been the enactment and enforcement of laws and rules governing workplace safety—and nowhere more so than in healthcare facilities.

Of course, the healthcare environment has naturally been subjected to the most stringent requirements, including mandatory vaccines and personal protective equipment (PPE). The safety-driven concerns in turn served as a catalyst for legislative and other governmental action to institute protections from retaliation to those who expose unsafe practices, i.e., “whistleblowers.”

At the federal level, OSHA has not only stepped-up enforcement of workplace safety concerns, but it has taken a prominent role in protecting workers against retaliation. In fact, OSHA recently released guidelines on how to file a Section 11(c) complaint for retaliation against employees who report COVID cases or health concerns to their employers. There has been a substantial increase in the number of whistleblower complaints to OSHA arising out of alleged pandemic safety-related violations. Not to be left out, the U.S. Attorney has set up its own hotline specifically for COVID-related claims.

In the context of state law, some states had existing whistleblower protections for healthcare workers reporting certain health or safety violations, including civil remedies. Many cases are working their way through the courts. One example is in California, where a court held that a former healthcare employee could proceed with a claim after she objected to being assigned to assess patients entering a senior living center when she had been exposed to COVID-19 (and was later terminated). Clark v. Calson Mgmt., LLC, Case No. BCV-20-101901 (Cal. Super. Ct. Sept. 8, 2020).

Despite existing whistleblower protections and increased OSHA federal regulatory enforcement, legislative efforts to enact protections at the state level have gained momentum. Indeed, there has been a particular focus on healthcare. Last year, New York Labor Law Sec. 741 was amended and broadened to provide further protections for health care workers who speak out against what they believe to be “improper quality of workplace safety” for employees or patient care to the media or within their company. Colorado passed a similar law. Various other states, including Maine, Arizona, Minnesota, Washington, and others are contemplating similar legislation. Under the New York statutory scheme, a whistleblower must initially bring the unsafe activity, policy or practice to a supervisor’s attention and allow a reasonable opportunity for correction. But, if retaliation ensues, violations can be costly.

As protections proliferate and enforcement intensifies, it is more important than ever for healthcare employers to ensure that proper safety protocols are followed, reports of unsafe conditions are taken seriously, and key personnel are highly trained. If you need more information or have questions, please contact the Jackson Lewis attorney with whom you regularly work, or any member of our Healthcare group.