Hospice as a business: Obey employment laws
One staff member should get savvy on the subjectThe hospice home nurse dreaded her visits to one of her patients. It wasn’t the patient herself but a relative who would brush against the nurse, subtly at first, then more and more blatantly, until one day he grabbed her.
The nurse complained to her supervisor and said she didn’t want to return to the patient’s home.
What’s a hospice to do?
"Do you withdraw services from someone in need because a cousin or uncle is hitting on your nurse?" asks attorney Michael S. Mitchell, JD, LLM (labor law), managing partner in the New Orleans office of the law firm Fisher & Phillips and a specialist in employment law.
The question is one of caregiving, yes, but it’s also a question of employment law, a subject where hospice managers often find themselves in unfamiliar territory.
Sexual harassment is but one of the employment law land mines buried in this territory as the hospice industry moves from small organizations focused on caregiving and turns in a more business-oriented direction — and one that experts say you need to seek expert advise.
Other potential problem areas include:
• The Americans with Disabilities Act requires employers to take affirmative steps to reasonably accommodate qualified disabled individuals. These accommodations frequently cost the employer money. The act covers not only hiring but also training and even participation in company-sponsored social events.
• The Immigration Reform and Control Act of 1986 requires proof of identity and eligibility to work in the United States. Everyone must show such proof and fill out an I-9 form, even someone you know was born in this country. And you can’t require the prospective employee to show specific documents — that’s document discrimination.
• The Family Medical Leave Act requires some employers to give eligible employees up to 12 weeks of unpaid leave, with no loss of seniority or health benefits, for family or personal health conditions or the birth of a child.
• Title VII of the Civil Rights Act of 1964 and its later amendments prohibit discrimination based not only on race, color, religion, or national origin, but also on age and sex. Sex discrimination includes sexual harassment, while the age discrimination provisions protect workers over age 40 from being singled out because of their age. In downsizing, for example, laying off the highest-paid workers is a logical means of cutting costs — except that the highest-paid employees tend to be the oldest, and laying them off in a group can be seen as age discrimination.
The federal employment laws are ever-changing, some applying only to organizations with a minimum numbers of employees. Individual states have additional regulations. "Hospice managers need to be aware of those laws and how they affect interviewing, screening, hiring, and selection of employees," Mitchell says.
"The best way to prevent problems is to have a well-educated human resources staff person in-house," says Mary E. Drobka, JD, an employment attorney who counsels health care agencies for the law firm Davis Wright Tremaine in Seattle. "Keep in compliance so you don’t have claims filed, or if you do, you can contain those claims." (See tips on compliance at right.)
Drobka understands that her hospice clients don’t have a lot of money. But she recommends budgeting for initial training and continuing education of one staff member responsible for advising personnel.
Mitchell, in addition, calls for a designated person to whom all employees are openly encouraged to take their harassment and other complaints. He also recommends the hospice make sure its managers and supervisors are trained to understand their roles in employment issues.
Hospices connected with hospitals often can call upon the resources of the hospital human relations and legal departments. Others, suggests Bonnie Kosman, MSN, RN, CS, CDE, director of patient care, Lehigh Valley Hospice, Allentown, PA, could establish networks with other health care agencies to find out how they handle employment situations.
"It’s an intermediate step to assure you that you’re not going nuts, and someone’s seen this problem before," she says.
"My hospice clients are not different from my home health care clients," agrees Drobka. "If home health care hasn’t encountered the problem, then my hospital or nursing home clients have." None of these takes the place of legal expertise. Drobka and Mitchell agree that a hospice should establish a relationship with an employment law specialist before any problems blow up.
"By investing a little time and money on the front end, you can save an enormous amount of heartache if you get into a lawsuit later," Mitchell says. "Avoiding one lawsuit can make or break a year for any employer."
He suggests having an employment attorney review the forms your hospice uses, as well as your employee handbook and your policies and procedures manual. The attorney also can advise you on conducting exit interviews and implementing discipline policies.
"You will have established a relationship with the employment attorney," says Mitchell. "Very often these kinds of problems come up suddenly. It’s good to be able to pick up the phone and talk to somebody who knows you and your approach to employee relations."
Once a lawsuit has been started, Mitchell says, the first steps are to protect the documents so they aren’t destroyed or mislaid and to get competent legal counsel quickly.
Many boards of directors include attorneys, but relying on them is not always the best choice, cautions Drobka. "Those people are invaluable to any organization," she says, "and hopefully, they will recognize employment issues. But these are specialized areas of law, and many times it’s penny-wise and pound-foolish to call upon a general practitioner.
"I’ve been there and tried to fix the problem. Unfortunately, it gets more expensive to solve."
"You don’t go to a brain surgeon with a heart attack," Mitchell agrees.
And what would he advise the hospice whose home health nurse is being harassed by a patient’s family? The answer will vary with the particulars of each case, but it could be yes, the hospice should withdraw its services.
"If a family begins sexually harassing your employee, you can under certain circumstances be liable if you are aware of it and there’s something you can do to stop it, and you fail to stop it," Mitchell said.
[Michael S. Mitchell has written a series of booklets on various aspects of employment law. Single copies are available free of charge from Fisher & Phillips, 201 St. Charles Ave., Suite 3710, New Orleans, LA 70170-3710. Telephone: (504) 522-3303. Fax: (504) 529-3850, e-mail [email protected].
Mary E. Drobka is with Davis Wright Tremaine, 2600 Century Square, 1501 Fourth Ave., Seattle, WA 98101-1688. Telephone: (206) 628-7645. Fax: (206) 628-7699, e-mail [email protected].]
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