Leadership, Ethics, and the Law

Program Transcript

[MUSIC PLAYING]

NARRATOR: In this program Donna Koppel, a senior human resource specialist, facilitates a discussion with a health care attorney and a nurse manager, focusing on some of the legal issues related to human resource management and how best to avoid legal problems in employment and workplace practices.

DONNA KOEPPEL: We're gathered together, a nurse attorney, a front-line nurse manager, and myself, representing the human resource function, to speak about nurse leaders dealing with legal issues. There's no doubt that managing people is fraught with legal pitfalls. If you don't know--

PAULET GREEN: Absolutely.

DONNA KOEPPEL: --the legal landscape that employment law covers. Everyone wants to avoid litigation and court because it can be very expensive for the company. It can be embarrassing, complex, and time-consuming for the manager.

So we're going to talk about number of people management things from hiring and managing people, performance management, terminating, some of the legal laws that need to be considered by our managers. But need to do it in a way that we can give them some concepts, some typical hands-on experiences to use with their staff. Let's start with talking about hiring and some of the things that during the interview process the manager may want to consider to sort of stay out of trouble.

REBECCA F. CADY: Let's start off real quick with just an overview of the Americans with Disabilities Act, which is the primary concern really that a nurse manager would want to keep in the back of her mind when she's interviewing someone. And hopefully the nurse manager can interface with the human resources department to get a sort of a facility-approved outline of questions to be asked of the nurse applicant that's being interviewed. Now the Americans with Disabilities Act impacts all facilities that have greater than 15 employees.

So pretty much any facility that a nurse is going to be working in except for perhaps a very, very small long-term care facility would be impacted by this law. And what this law does is it protects people who either are currently having or have a history of a disability, a physical disability or a mental impairment, from discrimination in the hiring and work process. And basically the person has to have this disability or a history of it. It has to impact their major life functions outside of work. In other words, moving around, driving a car, self-care activities, that type of thing.

DONNA KOEPPEL: Sight, hearing.

REBECCA F. CADY: Deafness. Exactly. Things like that. And the law's very broad in terms of what disabilities are covered. Obviously HIV and AIDS, hepatitis, infectious diseases can be included in this as well. As long as the person has that disability that qualifies them, then that's the second part of the requirements for the law to kick in. The third thing is that the person despite their disability has to be able to perform what are considered to be the essential functions of the position.

And this can even be with accommodations. For example, a deaf person might have a TTD device or some accommodative devices to help them. If they need the device and with the device can do the essential functions then they're covered by the act.

And it basically prohibits discrimination in the hiring process. And it's very important then that the interview questions try not to impact that because obviously if you start off asking somebody if they have health problems then that's a problem. You really can't get into what a person's health status is until after you've made an offer of employment.

DONNA KOEPPEL: That initial offer. Right.

REBECCA F. CADY: Exactly.

DONNA KOEPPEL: That's also the time where a physical can be done, a health physical.

REBECCA F. CADY: Correct.

PAULET GREEN: As we're looking at the process, two things, very important points, that you've both mentioned is first of all, the front-line manager needs to be very aware of what the law is. And then in the awareness, having the awareness of the law, the other thing that they need to remember to keep in mind, obviously, is to consult with HR. There are really two processes that I've been involved in as a front-line manager with the interview process.

One is where the manager just interviews by herself. If she has the knowledge then she does the interview and makes the decision as to whether or not someone's hired. I think when we really have to make sure that we educate staff is when they are involved in the interview process. Because another way to do it is when you have the manager-- an example, I have done the interview and then I've had staff, which we have worked with HR to develop some questions, and

then the staff have asked questions of the potential applicant in order to go through that process.

DONNA KOEPPEL: I think the literature is very clear that when you involve your staff you heighten the ability to integrate that staff person, the new staffperson--

PAULET GREEN: Absolutely.

DONNA KOEPPEL: --and have better acceptance by the team. However, I think there's couple of legal pitfalls there--

PAULET GREEN: That's right. Have to be aware.

DONNA KOEPPEL: --because if the staff are not committed to doing it well and don't understand what they're getting into they could ask some questions that they're unaware that could get them into some difficulties. Making it look like the reason they did or did not hire someone had some discriminatory reasons to it.

PAULET GREEN: And that's one of the reasons why I think it's really important that the questions are developed in advance, in collaboration with HR, so that we're ensured that the questions that are being presented to the applicant fall within the parameters of what's appropriate.

REBECCA F. CADY: Right. The danger really occurs when somebody's winging it, and an inappropriate question just happens to slip out. That's where the danger is. The other thing is people need to be aware of there are state laws against discrimination as well. And the federal law is a broad one and does not prohibit a state from making a law that's a little bit more stringent.

DONNA KOEPPEL: That's right.

REBECCA F. CADY: So that's why it's very important for human resources to be involved because they will know what the law is in the state, and they will be able to help you figure out whether it's a more stringent law or has different, more strict requirements that what the federal law provides for.

DONNA KOEPPEL: Now you mentioned the ADA, the Americans Disability Act, as being one issue not to ask health questions. Other things that you also want to avoid in interviews would be questions around age or even questions that could be perceived as trying to get to what their age is. A good example would be what year did you graduate from high school. Ah, we all can guess that you would be about 18 when you did that, and from that you could figure out--

PAULET GREEN: Figure out.

DONNA KOEPPEL: --what their current age is. Other issues, gender.

REBECCA F. CADY: Right and that can be an issue. Most predominantly the issue where I've seen it arise has been male nurses in labor and delivery. And you really can't, you cannot discriminate. The law says you can't discriminate based on gender, sex, religion,--

PAULET GREEN: Age.

REBECCA F. CADY: --color, national origin, or age. And so those categories sort of give you a hint as to the questions you really shouldn't be asking in an interview. And the other thing that's important is that you need to make sure if you've decided not to hire a candidate that the reasons for the decision not to hire are clearly documented. And that it's truly a decision based on something other than those hot-button issues.

DONNA KOEPPEL: I think one the recent hot buttons has been questions around military service. Asking about someone's military background is permitted, but making a decision because they have to go into active status is not permitted.

REBECCA F. CADY: That's right. And especially it's been touchy with the Reserves. And there's a federal law basically that protects people who are serving in the Reserves. We obviously want to have the Reserves. We don't want to have a draft again.

And in order to protect people who are serving in the Reserves and doing that service to their country, the law says that the employer has to-- they don't have to hold the specific exact job open for the person, but when the person comes back they have to give them a similar job with the same level of responsibilities and the same level of pay. And so that's very important, and issues with reservists do arise from time to time depending on what's going on with the nation. And it's something that people need to keep in the back of their mind that this should set off an alarm in their head to go to human resources.

Again, it's not something that the individual nurse manager is really expected to keep all the rules in his or her mind, but the point is to know when to go ask for help. And if you have a military reservist that would be a point to go--

DONNA KOEPPEL: Red flag.

REBECCA F. CADY: --talk to your human resources person and make sure that you're doing the right thing. Because it can get the facility into a lot of trouble, and it doesn't need to happen.

PAULET GREEN: One of the things the front-line manager needs to keep in mind is that it is impossible to know all the laws. It is impossible to know all the regulations. But we need to really know--

DONNA KOEPPEL: Your resources.

PAULET GREEN: --the point at which-- where we go to and who we talk to about the issues to be able to get the knowledge to help us make the decisions that we need to make on a day to day basis.

DONNA KOEPPEL: That's very true. I'd like to take the opportunity to talk about the issue of drug use and how this applies to hiring staff. Can you address that?

REBECCA F. CADY: Well the Americans with Disabilities Act specifically says that use of illegal drugs is not a qualified disability. And the employer basically has an absolute right to refuse to hire someone based on that person's habit of use of illegal drugs. So that is something that you can use as a hiring decision to exclude someone.

DONNA KOEPPEL: Which is why many companies do drug testing--

PAULET GREEN: Drug screening.

DONNA KOEPPEL: --right before they actually bring the person on board.

REBECCA F. CADY: Absolutely. And a conditional offer can be made-- the initial offer-- and then the pre-employment physical can take place. Almost always that includes a urine drug screen. And obviously if there's a problem with that then the person would not be ultimately offered the job. Or would not begin employment.

DONNA KOEPPEL: We've been talking about the impact of employment law in the hiring process. Let's phase in to talking about how today's workplace is so diverse. We hire people that are all very different with disabilities, different religions, ages, educational preparation, cultural backgrounds, just a myriad of things. And so our staff that we supervise is very, very diverse, had lots of differences. Let's talk about how that impacts the team and how to work with a diverse population.

PAULET GREEN: I think it's so important as a manager to set the tone for that. It's important to be sensitive. There are so many, as you said, so many different cultures we're working with, so many different categories of diversification that we see on the unit. In building a team, I think that the manager plays the pivotal role in being able to help people to understand the differences that may exist in your team members. And also the types of things that can be done.

I'll give you one example is in relation to an individual-- there was a certain religion-- and needed specific days off, the Sabbath, in order to be able to go to church.

And the problem was that she needed every Saturday. And so one of the things that we had used was self-scheduling. And the team worked together, where the individual who needed Saturdays off worked with somebody else. They got every Saturday off, and the other individual who happened to worship on Sundays got every Sunday off. So it's a way to be able to meet the needs of each individual staff member with the team working together.

DONNA KOEPPEL: Excellent compromise. You know in our workforce I think there's nearly 15% of the working population that speaks another language. Maybe foreign nurse or an American citizen with a very different cultural background. The issues come up frequently about can I speak my native language. And we struggled with a situation where the nursing assistants wanted to speak their language on breaks and the nursing staff felt that they were talking behind their backs, keeping secrets, those types of things.

Human resources got involved, but only after it was a full-fledged incident and blaming and angry and hurt feelings. It's another example of getting involved early, because it's perfectly fine for someone to speak their native tongue when they're not actively at work.

REBECCA F. CADY: Right.

PAULET GREEN: And that's the reason again when you look at it why it's so important for managers who are working with their staff first of all to develop that relationship in the team where people feel free to discuss those issues. Because when issues occur sometimes there's a level of discomfort. And so it's understanding something like that could be addressed in a staff meeting.

So there are opportunities on a day to day basis to be able to address them while working with HR. Maybe not even involving HR at that point, but just consulting with them and keeping it among the team to try and resolve the issues before they become a crisis.

DONNA KOEPPEL: Our HR consultants do training in the departments, bring information about diversity to staff meetings, and talk about how to even be aware that there's an issue. Is it facial gestures, physical stance, rolling of the eyes, just different ways that people express their discomfort with a topic.

PAULET GREEN: That and the other issue to be very aware of with staff is comments that can be made. You know the little comments either about sexuality or that are offensive to someone else. And so again, we get back to that point of the need to be sensitive and the education surrounding what is appropriate and what is not appropriate to prevent us from getting there in the first place.