2020 was a challenging and traumatic year for the senior living industry and its valuable frontline workers. Although 2021 has brought a hopeful remedy with the highly anticipated COVID-19 vaccine, numerous obstacles for the industry and its staff remain because of the ongoing pandemic, political tumult, and a constantly changing state and federal regulatory and legal environment.
On the labor and employment front, what can we expect this year? With Democratic control of Congress, a new Democratic presidential administration, and many state legislatures intent on implementing progressive policies, it is anticipated that the recent trends toward greater worker protections, more rigorous enforcement of federal and state wage and hour laws, increased union activism, and generous unemployment and sick leave benefits will continue.
Staffing, always a pressing issue for providers, remains challenging given hurdles to recruiting and retaining frontline workers. The fear of COVID-19 exposure and coronavirus infection, plus the enhanced stress of caring for older adults, the population most vulnerable to the disease caused by the novel coronavirus, create an uphill battle for recruiters and operators.
Moreover, state and federal laws supporting unemployed workers have created compelling incentives for workers to stay home and collect government subsidies instead of providing sorely needed elderly care services. Workers who continue showing up may be burned out and exhausted.
Although appreciating its necessity, workers also may be weary of continuing to wear vast amounts of personal protective equipment and being subjected to regular virus testing. They may yearn for more uplifting experiences with residents, such as communal dining and activities, and they may miss socialization opportunities with coworkers due to social distancing mandates.
One of the most valued assets of any company is its workers, and this principal resonates profoundly in the senior living space. Keeping essential staff, whose caring hearts and hands support the elderly, motivated and engaged is an essential priority for operators in 2021.
The vaccine is a vital turning point for the industry, but given the slow rollout, engaging and protecting workers through 2021 is critical. Providers may want to develop internal marketing campaigns to educate and encourage workers to get the COVID-19 vaccine to improve morale and safety in the workplace (as well as resident occupancy).
Labor also increasingly is expensive, not just in terms of paying for hours worked. Paid sick leave laws have proliferated in the past year related to the pandemic.
Many states, cities and counties have passed bespoke sick leave protections for workers that may vary depending on industry. For example, across California, a patchwork of sick leave laws are in place, with differing terms depending on city or county.
Employers should check to see which laws remain in effect in 2021, because certain jurisdictions have extended these entitlements beyond their original term. In certain states, such as New Jersey, sick leave and job protection laws may protect those workers who merely afraid are of COVID-19 as well as those sick or exposed to the disease.
Employers have been beset by ever-changing and often inconsistent guidance from state and local government authorities on the scope and terms of sick leave and quarantine laws. New York’s Department of Labor guidance has differed from its Health Department guidance, putting employers in a quandary concerning how many 14-day increments of leave workers with COVID-19 may be able to take. For New York senior living operators already facing steep staffing challenges, having workers take several periods of 14 days of paid sick leave related to COVID-19 creates additional, likely unforeseen expenses and highlights the need to have reserve staff available to fill gaps. Employers will want to stay abreast of such laws and guidance given their constant evolution.
Wage pressures also predominate as providers compete against what could be perceived as less risky workplaces such as retail, food and delivery companies. Offering creative incentives to reward performance and attendance beyond hourly compensation could be a way to engage and retain employees. For any new bonus or compensation structure, however, employers may want to confirm with legal counsel that such incentives are treated appropriately under wage and hour laws, which may vary depending on jurisdiction.
Given the expected labor priorities of the Biden administration and the Democratic Congress, as well as state legislatures around the country, employers likely can expect increased enforcement of existing laws and greater protections with regard to the federal Occupational Safety and Health Administration, freedom of speech and expression, and union organizing. Last year’s social and political unrest stemming from the pandemic, financial crisis and racial justice movements is not a thing of the past, as recent events in Washington, D.C.; Kenosha, WI; and Louisville, KY, demonstrate.
With such tensions ongoing, providers should be aware of enhanced worker protections for voicing opinions at work and on social media, as well as innovative union organizing efforts. Employers also can anticipate ongoing conflicts between existing civil rights laws and forthcoming new regulations implementing the National Labor Relations Act and other laws protecting employees’ speech rights both in and out of the workplace.
Sunny J. Thompson is a partner at Snell & Wilmer L.L.P.* in Washington, D.C. She previously served as associate general counsel for a multinational operator of more than 330 assisted living, specialized memory care, independent living, and skilled nursing communities throughout the United States, Canada and United Kingdom serving more than 32,000 residents.
*This article represents current general opinions of the author and not those of her law firm or colleagues.
