Health information system electronic health record week 1

Chapter 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

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.

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