HEALTH LAW SUPPLEMENT Fall 2003

NEW PRACTICE LAW FOR PSYCHOLOGISTS. The new practice law for psychologists became effective September 1, 2003. Its most immediate impact is on psychologists who in the past have employed non-licensed para-professionals and delegated to them diagnostic and treatment functions. This is now prohibited. All employees must themselves be licensed healthcare professionals, i.e., psychologists, social workers, psychiatric nurse practitioners . (N.B. It wasn’t and still isn’t permissible to retain non-licensed para-professionals as independent contractors.) There is an exception: students may still be employed as “externs” or “trainees” if their employment with the practitioner is part of a supervised course of study leading to a doctorate in psychology.

CURRENT CASE: GRIEVANCE PROCEDURES ARE CONSISTENT WITH AT-WILL EMPLOYMENT. “At will” employment is employment that may be terminated by an employer at any time for any reason, except discrimination. New York courts have in the past ruled that in the absence of an explicit (such as a written employment contract) or implicit (an oral promise) agreement to the contrary, employment is at will. In a recent case against Good Samaritan Hospital, an employee tried to make the case that because the Hospital’s employee handbook contained grievance for notifying and disciplining employees for deficiencies, she could only be fired for cause after the procedures had been followed, not summarily terminated as she was. An appellate court (751 NYS2d 580, 2002) decided in favor of the hospital and said at will employment cannot be inferred from grievance procedures in a policy manual.

Advice for employers: Employment manuals should state that all employment is at will, and that policies in it are not contractual in nature. As this case demonstrates, procedures for termination for cause are acceptable and will not vitiate at will employment, but it is recommended that terms such as “just cause” be avoided.

CURRENT CASE: HEALTHCARE PROFESSIONAL IN A BUSINESS CAN BE TERMINATED FOR COMPLIANCE WITH ETHICS. In another recent case, a physician who worked for the New York Times evaluating and treating employees alleged she was fired because she refused to comply with her employer’s requests for confidential patient information. Her practice, in compliance with ethics and professional mandates, was to release information to the Times only with appropriate patient authorization (which apparently was often refused by the employee-patients). The doctor alleged that an implicit part of her employment agreement with her employer was that she would act in accordance with the ethical mandates of her profession. New York’s highest court found for the employer, and held that even if the physician’s allegations regarding the reason for her termination were true, and even if her compliance with her employer’s demands for confidential patient information would have been unethical and unprofessional, the employer was within its rights to fire her because of the strength of the at-will employment doctrine in New York State. (Horn v. New York Times, 2/25/2003)
The court also stated, however, that if the doctor and her employer were engaged in a mutual undertaking, i.e., if both were healthcare providers and subject to the same ethical and professional standards and mandates, then it might have found otherwise.

Advice for professional employees who wish to work for non-healthcare businesses: If you anticipate any possible conflict in this regard, you might ask for a letter from your prospective employer stating that your duties include that you will be expected to follow the ethical mandates of your profession, and your employment will not terminated for your doing so.

MISCELLANEOUS EMPLOYMENT QUESTIONS.

I am a doctor with four employees, one professional and three clerical. I was asked by an employee who recently became disabled to make an accommodation for him. He seemed to think the ADA (Americans with Disabilities Act) says I must. Is that so? No and Yes. The federal ADA law applies only to employers with 15 or more employees. So that doesn’t apply to you. But New York State has a Human Rights Law with even more protection for disabled workers than the ADA, and it applies to employers with 4 or more employees. So, unless it would impose an “undue hardship” on you, you must make “reasonable” accommodations that the employee requests (Terms in quotes are subject to legal definitions and individual circumstances.)

An employee of a healthcare facility complains to the US Department of Labor about not being rehired after taking 2 months off after the birth of her son. The facility has 35 clerical employees and 65 part and full-time healthcare practitioners, the latter of whom are all independent contractors. The US DOL asks the employer to comply with FMLA and re-hire the employee. FMLA (Family Medical Leave Act) is a federal law that requires employers having 50 or more employees to grant 12 weeks leave to employees who have worked at least 1250 hours in the prior 12 months, for reasons of family childcare and health care. When proof was presented to the DOL that the facility had only 35 employees (independent contractors are not employees), the DOL withdrew its request for FMLA compliance.

An employer calls and asks about its policy of withholding professional employees’ last paycheck until the employees have completed all patient charting. This practice is illegal and may subject the employer to a fine. No money may be deducted from an employee’s paycheck unless it has been authorized in writing by the employee and is for the employee’s benefit. It was suggested to the employer that it inform departing professional employees that failure to complete charting within a specified period of time jeopardizes patient care, and would be reported to New York State licensing authorities.

I heard there are requirements that some employers must verify that their employees are not unauthorized aliens. I have only a secretary. Federal law requires all employers of whatever size to complete an I-9 form within 3 days of any hiring. The I-9 form serves as the employer’s documentation of the employee’s identity and authorization to work in the U.S. (The I-9 is not filed anywhere, it is simply retained by the employer. It is available online at the website of the U.S. Department of Justice, Immigration and Naturalization Service.)

PLEASE KEEP IN MIND THAT INFORMATION IN THE NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING YOUR CIRCUMSTANCES.

Categories