By Joan M. Roediger, JD, LLM
Increasingly, physician practices are finding that they are unintentionally getting caught up in employment related litigation. Prevention is key to minimizing this legal exposure. While many practices have policies and procedures in place, it may have been some time since they reviewed these policies. This article will discuss some of the preventative measures your practice can take to minimize your legal exposure.
Certain key policies should be contained in every policy manual. They include a disclaimer which clearly states that the policy manual is not to be construed as a contract between the employee and the practice. The policy manual should also state that the practice may, at any time, with or without cause, terminate the employment of the employee. Also part of this disclaimer should be the express statement that the practice has the authority to change the contents of the policy manual, as it deems necessary with or without notice. There should also be an overall statement of purpose regarding the policy manual which informs the employee that the policy manual is not meant to be all inclusive of all policies of the practice, but rather, to present most of the major practice guidelines.
The policy manual should clearly state that the practice maintains a strict policy of non-discrimination with all employees and applicants for employment. The policy manual should include a statement that all aspects of employment with the medical practice are governed on the basis of merit, competence and qualifications and are not influenced in any manner by race, religion, creed, color, age, sex/gender, national origin, ancestry, disability, marital status, citizenship status or as a disabled Veteran, Vietnam Veteran or any other military status of the individual. This non-discrimination policy should also state that all decisions relating to recruiting, hiring and promotions for all job classifications will be made solely on the basis of individual qualifications and requirements of the position.
It is extremely important that your practice adopt a sexual harassment policy. This policy should be specified in your policy manual and should clearly define what constitutes sexual harassment. Understand that sexual harassment covers such broad topics as sexual advances and the creation of an intimidating, hostile or offensive work environment by conduct related to sexual harassment. This policy should require the employee to immediately report any instance of sexual harassment to their supervisor or the managing physician. It is a good idea to offer at least two people to whom the employee may report instances of sexual harassment. Recognize that medical practices are required, like all other employers, to investigate immediately allegations of sexual harassment and take appropriate action.
It is also essential to have contained within your policy manual a statement regarding confidentiality of practice information. Your employees are exposed to sensitive, confidential, patient information. Your practice is under certain federal and state laws regarding protection of confidential information, including HIPAA. Make sure you prohibit the unauthorized disclosure of confidential information by your employees and expressly state that employees are prohibited from discussing confidential information outside of the office.
Whether or not your practice has a formal compliance manual, the policy manual is also the appropriate place to reaffirm your commitment to compliance with all laws, rules and regulations. You may reiterate some of the terms that are contained in your compliance manual such as employee education requirements and reporting of violations of the compliance policies, or you may simply reference your formal written compliance policy.
Technology Related Policies
Our increasing reliance on computers and the Internet have opened a whole new array of employment-related liability claims. The policy manual should address your employees’ obligation to use your practice computers and software programs solely for practice business. It should describe that the employees are not allowed to make copies of any computer materials without the express written permission of the office manager or the managing physician.
If your practice provides Internet access to employees, your policy manual should contain an Internet usage policy. This policy will affirm that Internet use is restricted to practice business. If you communicate with patients via the Internet or email, your Internet policy should require the employees who are responsible for such communications to print out a copy of each communication to or from patients and place a copy of those communications in the applicable patient’s chart. Your Internet and computer policy should also clearly inform your employees that they have no expectation of privacy with regard to their Internet usage or their email. It should state that, just as the practice has the right to monitor employees’ phone calls and voice mail messages, it also has the right to monitor employees’ Internet usage and/or email usage.
Your employees have an obligation to exercise due care in using the practice’s property and to use the practice’s property only for practice-related business purposes. Employees should be required to immediately report to their supervisor any damaged or non-functioning equipment. Also, the policy manual will typically remind employees that practice property such as phones, faxes and voice mail are to be used for practice business only.
Policy manuals are also an excellent opportunity to spell out certain job requirements. As the appearance of your employees reflects upon your professional reputation, most practices choose to include a statement regarding expected professional conduct and professional appearance at work. If your practice has adopted a certain dress code, it is appropriate to state this dress code in the policy manual and the consequences of violating the dress code.
Many medical practices require new employees to be considered probationary employees for the first 90 days of their employment. This should be enumerated in your policy manual. Many practices also state that the work hours will be determined by the office manager or managing physician and may be changed from time to time according to the practice’s needs. The policy manual is also an appropriate place to describe to your employees when breaks will be scheduled, if at all, and how the employees’ lunchtime will be determined.
The policy manual should describe overtime compensation. It is permissible to require employees to seek approval from the office manager or managing physician before working overtime. However, your practice cannot fail to pay overtime compensation if the employee fails to get such approval. The policy manual can be used as a reminder to employees that failure to obtain advance approval for overtime may subject the employee to discipline.
Typically, your employees’ entitlement to benefits is described in the policy manual. If your medical practice is subject to COBRA, you may also wish to include in your policy manual a statement regarding employees’ eligibility for continuation of benefits under certain circumstances. The manual will also expressly state your employees’ entitlement to paid time off, including vacation, holiday pay, bereavement leave, sick days, jury duty and military service. Be sure your policy manual clearly specifies whether time off is paid or unpaid, whether it is able to be accrued from year to year and whether or not unused benefits will be paid at the end of each work year or upon termination of employment.
Perhaps the most critical part of the policy manual is the employee acknowledgement. The acknowledgement should be attached to the policy manual and should state that the employee has received and reviewed a copy of the policy manual. It should state that the employee has had the opportunity to ask any questions about the policy manual and that the employee understands its contents. This acknowledgement should further clearly state that the employee recognizes that the policy manual is not a contract of employment and that all the policies within the policy manual may be changed, altered or modified at the discretion of the practice, with or without notice to the employee. The employee should sign this acknowledgement and date it. This signed acknowledgement becomes a very important part of the employee’s personnel file. In the event of a later dispute, the practice can always refer to the acknowledgement as evidence of the employee’s knowledge of the policies.
Understand that your policy manual’s success depends, in part on the practice’s consistent application of the policies. Prior to implementation of each policy specified in your policy manual, consider whether or not your practice can realistically uniformly adopt and enforce the policies. Any policies that are identified as problem policies by the practice should not be contained within the manual.
By structuring clear employment policies now, and communicating these policies to your employees, your practice will hopefully avoid employment-related liability claims. If, however, your practice does have a complaint filed against you by a current or former employee, the employee manual can be a useful tool in the defense of such litigation or claim.
Recognize that every medical practice has different policies and ways of operating its business. These policies and business practices should be clearly reflected in the employee policy manual. Avoid relying on a commercially available policy manual without first tailoring this manual to your practice’s business practices and reviewing your final draft of your policy manual with your practice attorney. By developing effective personnel policies and implementing them uniformly, your practice will benefit.
Joan M. Roediger, J.D., LLM is a Partner in the law firm Obermayer Rebmann Maxwell & Hippel LLP and is a Member of Obermayer’s Health Law Department.