By: Mathew J. Levy, Esq. & Stacey Lipitz Marder, Esq.
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Overview:

Employees often play a critical role in the success of a medical practice.  Although employees can often be an asset, they can also often be a liability.  As the owner of your business, you are ultimately responsible for the actions of your employees.  In order to ensure that your employees are aware of their obligations, it is imperative that your Practice have policies and procedures governing your employees’ duties and responsibilities.  Although some employees may be subject to the terms and conditions of an employment agreement, not all employees have such an agreement. Therefore, having a comprehensive Employee Manual that is up to date and comprehensive is critical in order to inform your employees—in a positive yet clear manner--what you expect from them and what they can expect from you, as well as the consequences of violating any Practice policies.  An Employee Manual may also provide your Practice with legal protection if an employee later files an employment claim against you. We have highlighted some key provisions that should be addressed in all Employee Manuals. 

Probation and Termination:

Prior to hiring an employee, your Practice should do its due diligence with respect to such potential employee, including conducting background checks, ensuring such employee has the appropriate license, as well as checking referrals. It is always better to obtain such information prior to the commencement of employment.

It is recommended that all employees engage in a “trial period” for a few months prior to officially becoming a member of the team.  During this time the newly hired employee and your Practice can have a mutual opportunity to evaluate the appropriateness of the employment.  During this probation period employees are generally not afforded benefits.  Upon successful completion of the probation period, your Practice can then extend a full-time offer to the employee.

Although New York State is an “employment-at-will” state, meaning an employer has the right to discharge an employee at any time for any reason, except with respect to race, creed, national origin, age, handicap, gender, sexual orientation or marital status, it is recommended that the Employee Manual specify that all employees can be terminated at any time without cause.  Upon termination, all employees should have an exit interview, whereby you have a discussion with the employee regarding his/her employment.

Status of Employment / Hours / Over-time / Attendance / Vacation days / Workers’ Compensation/Benefits:

Once an employee is hired, in order to avoid any potential disputes, it is recommended that the Employee Manual specify the types of employment (i.e. full-time, part-time and per diem), as well as the hours all employees are expected to work.  Employees should also be made aware as to whom they should inform in the event they are late, as well as your Practice’s policy with respect to taking time off during the day for personal matters.  Furthermore, employees should be informed if and when they may be eligible for over-time.  The Employee Manual should also specify how many vacation days and sick days employees are entitled to, as well as how employees accumulate such days.  The Employee Manual shall also identify the process associated with utilizing such paid time off (i.e. how much notice should be given and if a doctor’s note is required), as well as whether employees can “roll over” unused days to the next year or receive compensation for unused days.  In the event an employee is injured on the job, employees should also be made familiar with your Practice’s policies and procedures with respect to Workers’ Compensation.

Furthermore, the Employee Manual should highlight the benefits that are offered to employees (as well as eligibility), including for instance health insurance, retirement benefits, life insurance and/or disability insurance. Although your Practice should retain the right to change any such benefits, the Employee Manual is often a good place to at least address which benefits your Practice offers. 

Confidentiality:

In order to ensure that your Practice’s trade secrets, including billing, general processes and account receivables for instance, are kept confidential, the Employee Manual should contain a provision indicating all such “proprietary information” should remain confidential during and after the terms of employment.  Furthermore, in accordance with HIPAA the confidentiality section should specify that all patient information should remain confidential and should not be disclosed unless as permissible under HIPAA.  This is extremely important as the Department of Health and Human Services has indicated that the Office of Civil Rights will be conducting audits of physician practices with respect to HIPAA compliance.  As such, in the event protected health information is inappropriately disclosed by an employee, the employee shall be made aware that he/she may be subject to disciplinary action, up to and including the termination of employment.

Rules of Conduct:

Especially since the employees in your Practice will likely often have contact with patients, it is imperative that employees comply with certain ethical guidelines.  For instance, employees must be fully briefed that they are not to diagnose or treat patients unless they have the appropriate license, and that all patients must be treated with respect.  Furthermore, to ensure an effective and proper working environment, your Practice should require the employees to conduct themselves in an appropriate, courteous and professional manner, or else disciplinary action may be taken.  For example, employees should not engage in the following actions: disrupt your Practice’s operations; fail to comply with reasonable requests made by you or the employee’s supervisor; engage in sexual harassment; be uncooperative; engage in substandard work performance; engage in theft, destroy property; be intoxicated or on drugs during working hours; offer, solicit or accept bribes, gifts or gratuities from patients; lack of personal cleanliness; disregard safety regulations; verbal or physical mistreatment of patients; and falsification of time sheets.  Furthermore, your employees should be informed of your Practice’s policies regarding smoking, appropriate dress, personal phone use at the office, visitors and email and internet usage. 

Conclusion:

Practices that are willing to realize that labor law issues in today’s medical practice environment are extremely complex and that most issues can be addressed in a well drafted Employee Manual are at an advantage as those practices that have an Employee Manual and train their employees on the policies contained within the Employee Manual will have taken an enormous step in avoiding labor law disputes in the future.

About the Authors:

Mathew J. Levy, Esq. is a Principal of Weiss Zarett Brofman Sonnenklar & Levy, PC. Mr. Levy is nationally recognized as having extensive experience representing healthcare clients in transactional and regulatory matters. Mr. Levy has particular expertise in advising health care clients with respect to contract issues, business transactions, practice formation, regulatory compliance, mergers & acquisitions, professional discipline, criminal law, healthcare fraud & billing fraud, insurance carrier audits, litigation & arbitration, and asset protection-estate planning.  You can reach Mathew Levy at 516-926-3320 or email: mlevy@weisszarett.com.

Stacey Lipitz Marder is an associate at Weiss Zarett Brofman Sonnenklar & Levy, PC., with experience representing healthcare providers in connection with transactional and regulatory matters including the formation and structure of business entities, negotiating and drafting contracts and commercial real estate leases, stock and asset acquisitions and general corporate counseling.  Ms. Marder also has experience advising healthcare clients on a wide range of regulatory issues including Stark, the Anti-Kickback Statute, fraud and abuse regulations, HIPAA, reimbursement and licensing matters.