Health Care Risk Management
Helpm31990
Chapter3.pptxChapter 3: Risk Management in Employment
Employment Relationship carries Risk
Risk to an organization is not limited to provider-patient relationships
As in any business, the healthcare organization has responsibilities to its employees. Many of which, if not properly implemented/enforced, can lead to negative and litigious results
Employment-at-Will
An employer may dismiss an employee hired for an indefinite period of time for any reason or no reason at all without incurring liability to the employee
Caveat: cannot discharge for an unlawful reason, such as racial discrimination
Implicit Employment Contracts
Though most states follow the employment-at-will doctrine, many organizations may unknowingly negate their ability to apply this principle through
Employer policies (i.e. progressive disciplinary policy)
Oral assurances (i.e. looks like you have a bright future ahead of you here)
Industry customs (i.e. after so many years in one position, employees are promoted to the next level)
Employer conduct (i.e. allowing some employees more chances to correct errors than others)
Burden of Proof
In civil litigation of discrimination, the burden of proof is usually on the plaintiff -they must show:
Membership in a protected group
Satisfactory job performance or appropriate qualifications for the job being sought
Receipt of discipline, termination or rejection despite having the qualifications
Employees of another protected class were disciplined less severely or the employer continued to accept application of people who were no better qualified
Sexual Harassment
Unwelcome sexual advances, request for sexual favors or other verbal or physical conduct of a sexual nature when it is one of the following:
is a condition of employment
is the basis of employment decisions
interferes with work performance
creates a hostile work environment
The employer must be made aware there is an issue and then take action. The employee cannot sue unless he/she has told someone and nothing was done.
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Minimizing Risk of Sexual Harassment
Organization must exercise reasonable care to prevent and correct any sexually harassing behavior
Written policies/procedures
Documented staff training on policies/procedures
Consistently adhere to and enforce policies
Immediately investigate allegations of sexual harassment
Responsibility of the Employee
Employee must report occurrences of sexual harassment to employer
Employer must be given the opportunity to investigate and take corrective action
Though it is important that an employer investigate all reports of sexual harassment, proactively addressing situations or behavior that may be perceived as sexual harassment is imperative.
If management is aware of a potential situation and does nothing, the risk of litigation and penalty is increased
People with HIV or AIDS are protected by the ADA
Persons with HIV disease, both symptomatic and asymptomatic, have physical impairments that substantially limit one or more major life activities and are, therefore, protected by the law.
Americans with Disabilities Act 1990
Definition of Disability:
A physical or mental impairment that substantially limits one or more major life activities or a record of such impairment or being regarded as having such an impairment.
The facility must determine the essential job functions of a position and make reasonable accommodations for a disabled employee.
Essential job functions and Reasonable accommodations – page 76
During an interview
1) Can’t specifically ask about disability during job interview process.
2) Can ask if applicant can perform the essential functions of the job with or without reasonable accommodations.
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Due Process
When confronting alleged misconduct, there must be Due Process:
A clear rule against the misconduct
The rule must be reasonable
A thorough and objective investigation
Notice of the charges and penalty
Opportunity to respond or appeal in some way
Worker’s compensation
Mutually beneficial social insurance system where the employer takes care of an injured employee’s medical costs and part of the salary in exchange for the waiver of the employee’s right to sue.
Retaliation
Retaliation may be said to occur when an employee is subjected to adverse employment action (i.e. termination) because of an action he took that was within his rights (i.e. reported sexual harassment)
Retaliation is more easily proved by the claimant than other allegations. A claim includes:
The employee engaged in protected activity
The employer took adverse action against the employee
A causal connection exists between the protected activity and the adverse employment action
Whistleblowing
Whistleblowing is the action in which an employee reports employer misconduct to legal authorities. It is supported by
The Elder Justice Act
False Claims Act
Whistleblowers do NOT have to report the misconduct internally to management first
Social Media
As employees become more adept in using social media, employers must take care in policing so as not to impinge upon freedom of speech
Employers need to implement policies that clearly define what is and is not permitted during work hours in terms of us of company computer
Define confidential information that is not to be shared
Prohibit defamation, harassment and use of questionable websites
Background Checks
Background checks are required in many states and help minimize the risk of Negligent hiring.
Healthcare organizations must perform due diligence when hiring:
Background check for criminal record or other disqualifying actions
Validating credentials
Incivility and Violence
Poor and/or disruptive behavior (some of which is violent) by physicians and nurses is well documented.
Ignoring this problem can increase the risk of patient and employee safety as well as of litigation and penalty
Defamation
As part of their due diligence, prospective employers will contact previous employers to requesting a reference. This may cause a dilemma for the previous employer:
Should they provide true information about the applicant and perhaps open the organization up to defamation charges?
If they do not disclose information regarding the potential for future harm to patients, is the previous employer liable should harm take place?
Recommended Risk Management Strategies for Employers
Address issues of microinequity which, alone may appear of little concern, but over time have large implications to employee morale, retention and patient safety
Nurture employee engagement
Management should be proactive in monitoring provider and employee behavior
Be consistent in application of policy
Summary
It is crucial to understand employment laws and how they relate to the facility
Ignorance may lead to increased risk of employment related lawsuits
Patient safety may also be at risk if employment laws are not followed
Management staff and employees must know and follow employment policies
