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Employers should continue to enforce all recommended COVID precautions within the practice and remain vigilant of changes in state and federal laws.
Most medical practices are taking steps to protect their employees and patients from the risk of contracting COVID. I have worked with many practices over the past several months to create thorough policies and training programs to assure compliance with state and federal recommendations.
While most employees/contractors are fully compliant with practice policies while at work, outside the practice many are less vigilant. Some staff may travel to known hotspots or refuse to wear masks outside the practice office. Others regularly socialize with large groups (also without masks) and flout compliance with safety recommendations through comments and photos posted on social media. For practices that are trying to create a safe environment for patients and employees, such employee activities can pose a challenge.
Unfortunately, an employer generally cannot dictate an employee’s conduct on their own time if such conduct is not illegal (i.e. drug use). Efforts to talk with employees and asking them to comply with COVID safety recommendations to help protect patients and co-workers may work, but not always. While many practices would rather turn a blind eye to their staff’s outside activities, this approach may not work if the employee becomes infected with COVID, or when other employees see social media postings and threaten to leave the practice due to safety concerns.
If your practice is facing similar issues, here are some recommendations:
1. The practice should continue to educate staff on the latest data regarding COVID so that all staff is well-informed on travel hotspots to avoid, transmission risks, and best practices. Ongoing training and the constant reminder that practice employees need to care and look out for each other (and patients) can foster some sense of community among employees.
2. Employees that do not have written contracts are generally considered “at will” employees, depending on the state. I have worked with practices that simply decide to terminate those employees they feel are non-compliant with moral or behavioral expectations or who show a disregard for others’ health and safety. It’s important that if the practice elects to terminate an employee who is at will, that no reason be given for the termination (and none is required). It is also important that employees all be treated the same and that there is no discrimination in any termination choices. Be aware that terminating an at-will employee “for no reason” may lead to an unemployment claim.
3. Employees with written contracts are more difficult for a practice to terminate. I have worked with several practices to terminate employees “without cause” where appropriate, by simply providing notice and either paying out the notice period or allowing the employee to work during the notice period. Such terminations also will lead to unemployment claims, but minimize other types of employment claims by the terminated employee
Very few employment contracts have “termination” for cause provisions that apply to an employee’s legal activities outside work (and that would not be legally challenged). One practice I work with used a provision tied to the employee’s conduct “negatively affecting the practice’s reputation.” In this instance, several patients called to complain about an employee’s photo appearing on social media at a large, crowded indoor event with no masks being worn. Even worse, the employee was quoted as saying she did not believe in masks and thought that COVID was a hoax. The practice’s patients threatened not to return to the practice if their employees were not being careful to avoid COVID and taking the risks seriously.
While some practices may have “for cause” provisions that will work to allow an employee to be terminated for such conduct, most practices will want to review their written contracts to see what changes are needed in the termination provision. Alternatively, instead of adding “for cause” termination provisions, shortening a “without cause” provision is always an option.
As the pandemic continues and everyone tires of compliance with masks and other restrictions, employee non-compliance may increase. Employers should continue to enforce all recommended COVID precautions within the practice and remain vigilant of changes in state and federal laws. While conduct a practice views as improper can adversely affect the practice’s reputation and put employees and patients at risk, employers need to be careful (and talk to counsel) before any decision is made to terminate an employee.
Ericka L. Adler, JD, LLM has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark Law, Anti-Kickback Statute, and HIPAA. Ericka has been writing for Physicians Practice since 2011.