There are myriad state and federal employment laws that both employers and employees may encounter. Getting professional advice from a healthcare employment attorney and understanding which laws apply to a particular situation before action is taken can save thousands of dollars in future bills.
Physicians, whether employees or employers, have to be mindful of both state and federal discrimination laws that may affect their practices. By understanding what conduct is prohibited, physicians will be less likely to engage in inadvertent acts that can lead to liability for physician employment discrimination issues.
Federal laws against discrimination due to race, sex, religion, color, national origin, disability, pregnancy, sexual orientation, or military status apply to employers that have 15 or more employees. The federal law against age discrimination applies to employers that have 20 or more employees.
Physicians should review the number of employees on their payroll. Even if the requisite threshold numbers aren’t met at the beginning of the year, they may be met toward the end of the year and subject the employer to the discrimination laws.
Physicians’ offices should have a written non-discrimination policy specifying that discrimination (which includes harassment) based on sex, race, color, religion, age, handicap, pregnancy, sexual orientation, or military status is illegal and will not be tolerated. The policy should clearly set forth what to do if an employee believes that he or she is a victim of discrimination. The policy should have at least two alternatives for reporting discrimination, including one that bypasses the alleged discriminating official. It should also inform employees that they will not be retaliated against for making a complaint of discrimination.
Physicians should print their non-discrimination policy in the company’s employee handbook or as a separate document and disseminate it. They should review the policy with each employee and have each employee sign an acknowledgment that he or she has received, read, and understands it. In addition, the policy should be prominently posted in a break room or anyplace else where employees congregate. Display posters may be obtained for free from the Equal Employment Opportunity Commission.
A sexual harassment policy should define sexual harassment as any unwelcome sexual conduct, including sexual advances, requests for sexual favors, and other verbal or physical conduct that enters into employment decisions or creates an intimidating, hostile, or offensive working environment (i.e., one that unreasonably interferes with an individual’s work performance or other terms and conditions of employment). Any time an employee suffers a negative tangible employment action as a result of sexual harassment by a superior (e.g., a demotion or termination for refusing sexual advances), the employer will be held strictly liable for the consequences. In cases in which a supervisor creates a hostile work environment only (i.e., no tangible employment action against the victim), the employer will be held liable for the harassment if the victim follows whatever steps are in the policy but the employer fails to take measures to prevent and correct the situation. When an employee is subjected to a hostile work environment by a coworker, the employer will be held liable for the harassment if the employer knew or should have known about the harassment and failed to take immediate and appropriate responsive action.
At least once a year physicians should have a short presentation given for all employees concerning illegal discrimination and harassment, including a discussion of the company’s complaint procedures. Physicians should consider having their attorney give the talk.
Having a pregnant employee in a small to medium-size office can put added stress and work on the other employees, both before and during the maternity leave. Nonetheless, pregnancy must be treated in the same manner as other disabilities. So, if a male doctor is ordered to take three months off following a heart attack, then a pregnant woman must be allowed to take off the time her doctor orders as well. Similarly, one may not establish mandatory maternity leave that is not related to the employee’s ability to work. Even when the motive is to protect the unborn child, it is illegal to discharge the employee unless it is demonstrated that no less restrictive alternatives exist or that the employee would be exposed to unsafe levels of radiation or a similarly toxic environment and it is determined that only women would be affected by the hazard. In conclusion, physicians should be consistent in the manner in which they treat temporarily disabled workers, including pregnant employees. In addition, physicians should not ask about a prospective worker’s intention to become pregnant.
While it may be tempting to give an employee severance pay (or receive severance pay) in exchange for a general release of all claims, including the Age Discrimination in Employment Act of 1967 (ADEA) claims, employees who are 40 years of age or older are covered by the Older Worker Benefit Protection Act. That means if the employer wants to preclude or settle a dispute without litigation, the employee must be given something of value over what any other employee would receive, 21 days to consider the offer (which must specifically refer to releasing ADEA rights or claims), and seven days to rescind the acceptance of an offer. They also must be advised that they can and should seek legal counsel. If the offer is part of an early retirement package, the employee must be given 45 days to consider it.
Concierge Healthcare Attorneys, LLC employment services often include: providing advice and counsel regarding employee handbooks, internal policies to govern hiring and firing practices, non-discrimination policies and practices, employee and independent contractor distinctions, and wage and hour issues.
Physicians accused of discrimination or sexual harassment can face legal consequences that can negatively impact their careers. Employment discrimination cases involving medical personnel are often complicated legal matters that require the services of a competent, reliable, and focused healthcare employment attorney.
Concierge Healthcare Attorneys, LLC has over 40 years of experience in the handling of physician employment issues, including discrimination matters, wrongful terminations, defamation actions, and other employment disputes. We also provide training and policies; and if necessary, representation in administrative and court proceedings.
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