TIME TO RE-REVIEW THOSE POLICIES & PROCEDURES ON PHOTO, VIDEO, AND AUDIO RECORDINGS

Healthcare providers are highly sensitive to the risks introduced by recordings in the workplace—not the least of which are potential violations of federal and state laws regarding the privacy of their patients and residents.  We have often advised our healthcare clients to enact restrictions on recordings that could introduce unnecessary risk, but a National Labor Relations Board (NLRB) decision, recently upheld by the U.S. Court of Appeals for the Second Circuit, indicates that those same restrictions on recordings might, in and of themselves, introduce compliance risk.  In its decision, the NLRB had to determine whether no-recording policies maintained by employer Whole Foods were overly broad by prohibiting all recordings by Whole Foods employees without prior management approval.  The NLRB’s position seems clear: Policies reasonably read as prohibiting all employee workplace recordings violate the National Labor Relations Act. 

Section 7 of the National Labor Relations Act (the “Act”) guarantees employees the right “to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  The NLRB has interpreted the Act to protect recordings by employees in relation to that purpose (e.g., when used to document unsafe working conditions), provided there is no overriding employer interest justifying the prohibition.   The conclusion reached by the NLRB and upheld by the appeals court was that Whole Foods’ blanket no-recording without management approval policies were overbroad and not limited to controlling employee recordings that are not protected by the Act.

The tensions and competing interests surrounding recordings in the healthcare setting are not new to providers.  However, the NLRB decision presents the latest challenge in a balancing of parties’ respective rights and obligations related to recordings in this setting.

Nursing facilities provide a particularly apt example of these challenges.  In addition to HIPAA and other federal and state health privacy laws, this setting faces unique practical challenges and regulatory requirements that highlight these tensions.  These issues include dealing with requests for electronic monitoring of residents’ rooms and various state laws and regulations related to accommodating such requests, while being sure to comply with state and federal laws related to matters such as wiretapping and distribution of obscene images.  The issue of any form of recording in this setting is further complicated by CMS’ interpretation that any resident image captured by nursing facility staff either (1) without the resident’s (or “designated representative’s”) written consent or (2) that may be humiliating or demeaning—regardless whether the resident provided consent—must be reported and investigated as abuse.  This interpretation of potential abuse also extends to any unauthorized image of a resident’s room or furnishings, whether or not the resident is included in the image.

Healthcare employers are likely to receive greater policy leeway than some industries under the NLRB’s qualification to Section 7, providing that even otherwise protected employee activity will be evaluated against an employer’s assertion of an overriding interest.  A provider policy that is necessary and narrowly tailored to comply with privacy laws, such as HIPAA, would presumably be such an “overriding interest.”  However, the Whole Foods decision makes it unlikely that even a healthcare provider could implement such a broad no-recording policy without running afoul of the National Labor Relations Act.

The appellate court appeared to leave room for some limitations on recordings in the workplace, provided (1) they are intended to protect an overriding interest, and (2) employers narrowly tailor such limitations so as not to prohibit protected recording activity.  Providers should ensure their policies and procedures demonstrate an attempt to reasonably narrow any limitations placed on employee recordings in relation to patient privacy issues.  It should be clear from reading the policy that the provider put thought into ways of balancing the protection of patient privacy with the rights of its employees.  For example, policies and procedures may prohibit recordings in patient care areas but have different ways of addressing recordings that take place in restricted areas.  Policy statements should also clearly identify the overriding interest the limitation seeks to protect. 

If you would like assistance reviewing or drafting policies and procedures that deal with employee recordings and resident images in your healthcare setting, please contact Nixon Law Group.