Friday, August 28, 2015

Religious Discrimination Case Against UPS

New Ruling Shines Spotlight on Religious Discrimination

In July, the U.S. Equal Opportunity Commission sued the world’s largest package delivery service, United Parcel Services, claiming that UPS failed to hire, promote and accommodate Muslims, Rastafarians and Christians whose religions dictate grooming practices that UPS found objectionable. The lawsuit claims that UPS prohibits male employees who are supervisors or who have dealings with customers from wearing beards or growing their hair below collar length.

One example in the lawsuit is that of a Muslim applying for a driver’s helper position in New York who wears a beard as part of his religious beliefs. He was told to shave if he wanted the position and that “God would understand.” Another example in the lawsuit is that of a Rastafarian load supervisor in Fort Lauderdale who does not cut his hair as part of his religious beliefs and who was told “we don’t want any employees looking like women on management teams.”

The lawsuit against UPS comes on the heels of the U.S. Supreme Court ruling against retailer Abercrombie & Fitch on another religious discrimination claim. There, the company refused to hire a then 17-year-old woman in Oklahoma for a position at a store because she wore a “hijab,” or head scarf. The retailer claimed that the scarf, and all other head coverings, did not conform to the company’s dress code.

Both of these suits claim that the actions of the employers violated Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based upon (among other things) religion. As the Supreme Court stated in its Abercrombie decision, “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

Further, under Title VII, unless it would pose an undue hardship on the employer, an employer must make reasonable accommodations to its employees and cannot refuse to hire or promote an applicant/employee if the need for a religious accommodation is a motivating factor. “Undue hardship” on an employer is defined as an action that imposes “more than a minimal burden” on the business. Examples include causing a lack of necessary staffing, jeopardizing security, or costing the employer more than a minimal amount. What is considered “minimal” by an employer and the EEOC can vary significantly.

These cases make clear that religious discrimination is an area of strong interest (and enforcement attention) of the EEOC. It underscores the need for policies and practices that every employer should follow:

● Employers should ensure that managers know the EEOC guidelines, as well as the company’s policies, by providing periodic training to all managers. These trainings should especially cover policies relating to scheduling, dress codes and grooming standards – three of the most common areas of company policies that can run afoul of certain religious practices.

● There should be strict guidance provided to hiring managers prohibiting any jokes or sarcasm directed at any religious belief. These statements, even if made in a non-serious fashion, have no place in the workplace and often form objective proof of and the basis for claims.

● Hiring managers should be aware that an applicant is not required to make a specific request for a religious accommodation, nor may an employer make an adverse hiring, promotion or termination decision based upon “actual knowledge, suspicion or merely a hunch” that an applicant will request an accommodation.

● Policies should require that all managers inform their HR department if an existing or prospective employee requests an accommodation or if they believe such a request will be made.

● Hiring managers should not ask employees or applicants directly if they are groomed or wearing attire for religious reasons. This type of inquiry can lead to a discussion that may trigger a later religious discrimination claim.

● Employers should carefully consider all options available to them before denying an accommodation request, especially on the basis of undue hardship to the company.

Religious discrimination cases, even those resolved prior to any formal lawsuit, are costly and distracting for a business. Implementing an HR training program that reaches all levels of an organization is a wise investment in preventing discrimination of all types in the workplace.

(EBN website)

Thursday, August 27, 2015

Unauthorized PHI Access Punishment

Employees Punished for Patient Record Snooping

Carilion Clinic., a Roanoke, Va.-based nonprofit network of hospitals and outpatient facilities, has fired or disciplined 14 employees over a problem common at many healthcare organizations: patient record snooping.
In the wake of a recent “high profile case” in the region, 14 employees were found to have accessed patient medical records without a legitimate patient-care need, says Vicki Clevenger, vice president and chief compliance officer at Carilion, in a statement. “Based on the findings of our internal investigation, appropriate actions have been taken with each employee, up to and including termination,” she says.
Record snooping is a common problem for many hospitals and other healthcare organizations. And when snooping is discovered, the consequences vary widely.
In addition to firings, “discipline may include a warning, retraining or suspension,” says privacy attorney Adam Greene. “HIPAA requires that a covered entity impose a sanction on any workforce member who violates privacy or security policies, but provides the covered entity with wide latitude to determine the appropriate level of sanction.”
Some healthcare providers institute a progressive system, with the level of sanctions increasing for multiple violations or for particularly egregious violations, Greene notes. “Some healthcare entities employ more of a zero-tolerance approach, terminating any workforce member who violates a privacy or security policy,” he adds.
Many other organizations have terminated record-snooping employees. Among those is Allina Hospitals and Clinics, a Minnesota health delivery system. In 2011, the organization fired 32 employees for inappropriately looking at the electronic health records of patients involved in a mass drug overdose case.
Detecting  and policing inappropriate access must be a priority for every healthcare organization, says privacy attorney Kirk Nahra. “This requires monitoring and audit checking. Every facility needs to be thinking about these issues because they happen regularly.”
Greene suggests organizations regularly review audit logs manually - choosing a random selection - and through algorithms that may detect suspicious patterns - such as an unusually large number of people accessing a file.
Some healthcare organizations, however, also pay special attention to monitoring access to health records of employees. “I have heard of at least one healthcare organization that provides that any employee who is treated as a patient will be given a list of all persons who accessed the patient’s records, deterring co-workers from snooping into the record,” Greene says.
Becky Hood, CIO of Everett Clinic, a multispecialty physician practice in Everett, Wash., says her organization uses a monitoring system from FairWarning to help red-flag inappropriate record access.
Not long after the system was rolled out at Everett Clinic, 13 staff members and physicians were fired due to a various incidents involving inappropriate record access, she says. “Our policy leans toward no-tolerance [of record snooping], but we’ll investigate each situation to determine if the incident was malicious, accidental or if a staff member didn’t understand [the rules],” she says.
As for Carilion Clinic, the organization typically finds out about patient privacy concerns in two primary ways, Clevenger says. “Individuals may raise specific concerns, or Carilion may proactively monitor a high-profile patient’s medical record.”
As part of its patient privacy and security efforts, Carilion Clinic says it provides ongoing education to employees regarding privacy rules and regulations and monitors their access to patient records. When potential issues are discovered, Carilion Clinic launches an immediate investigation.

(HIMSS Media website, ISMG website)

Tuesday, August 25, 2015

Respiratory Protection Programs in Long-Term Care

Why Long-Term Care Facilities Need a Respiratory Protection Program

Every year, between 1 and 3 million serious infections occur in nursing homes, skilled nursing facilities and assisted living organizations. That number stands to grow with baby boomers quickly aging and needing additional care. As more patients enter long-term care settings, it’s critical to make sure infection control is a top priority in these organizations in order to keep both patients and staff safe and healthy.
Long-term care patients often have compromised immune systems due to their age and comorbid conditions, making them less able to fight infection. As such, elderly patients frequently contract diseases that younger or healthier individuals might not. For example, a young, healthy person with latent tuberculosis infection (LTBI) probably will not progress to active TB disease. However, an elderly patient who has previously acquired LTBI is much more susceptible for active TB disease to develop. Because of patients’ increased vulnerability, it can be very difficult to control infections in long-term care settings if an organization does not immediately and consistently employ the proper precautions.
One way to minimize the spread of infection is to have a comprehensive respiratory protection program in place. OSHA requires organizations to develop such a program to protect staff if they are exposed to airborne pathogens, such as tuberculosis, influenza, chicken pox and so on. In addition to shielding staff, a well-executed program can also ensure that patients are not infected, preserving their safety as well as their health.
Despite the OSHA requirements, long-term care organizations often don’t realize they need a respiratory protection program, believing the risks of encountering a virulent airborne illness are low. However, due to the vulnerability of this particular patient population, the chances that a facility will at some point see a patient with a fast-spreading respiratory disease, such as active TB disease, are increased. Even if the organization transfers that individual to an acute care facility, it should still have a program in place to protect staff for the time period the patient is awaiting transfer. Also, there are some cases where a novel influenza virus, such as 2009’s H1N1 outbreak, would warrant the activation of a respiratory protection program.
As long-term care facilities begin to plan their respiratory protection programs, they should keep in mind several essential components to remain compliant, effectively mitigate risk and protect patients and staff:
        Qualified Administrator
This individual should be intimately familiar with OSHA regulations and understand the potential infectious hazards an organization may face. He or she should also be aware of the necessary PPE that will adequately safeguard staff. Typically this is an N95 respirator; a device that prevents the spread of target sized particulate matter 95% of the time.
        Written Plan
Underpinning a dynamic program is a detailed document that describes how the organization shields staff from respiratory hazards and complies with OSHA regulations. This document should describe any PPE needed, as well as the required environmental controls, such as proper ventilation. To assist organizations in crafting a written plan, OSHA provides in-depth resources that outline necessary components. In particular, the agency’s small entity respiratory program compliance guide, found here, is quite helpful, including a sample plan for reference.
        Workplace Analysis
To ensure a respiratory protection program mitigates the correct hazards, long-term care organizations should conduct a workplace analysis to see what risks are, or may be, present. Organizations should take this assessment seriously as it is the only way to guarantee the selection of optimal respirators and PPE. The program administrator may want to consult external resources when conducting this assessment, such as CDC modules about specific airborne diseases.

Monday, August 24, 2015

Workplace Bullying

Watch Out for Workplace Bullying

Workplace bullies have always been on the scene. But they’re now being recognized as productivity killers and potential legal threats to employers.
Some researchers claim one in every three employees will experience bullying at work. And the experts say bullying costs businesses more than $200 billion a year due to decreased productivity, increased absenteeism and high turnover.
A partial rundown of the corrosive effects of workplace bullying:
        reduced productivity, efficiency and profitability
        higher absenteeism, sick time and employee turnover
        decreased morale and loyalty
        increased costs due to recruitment and retraining
        increased workers’ comp claims
        indirect costs though time spent dealing with bullying situations
        negative effects on the company’s image
        potential fines for not abiding by occupational health and safety laws
        legal costs from employees who bring lawsuits, and
        potential increases to insurance and workers’ comp premiums.
Bullying isn’t automatically illegal. However, behaviors commonly associated with bullying often overlap with other behaviors that are illegal, such as harassment or bias.
Anton Hout, founder of, identifies these eight bully types:
1.      The Screaming Mimi. This is the most easily recognizable type of workplace bully. Screaming Mimis are loud and obnoxious, and their abusive behavior is meant to berate and humiliate people. They thrive on the notion that others fear them.
2.      The Two-Headed Snake. To a co-worker’s face, this employee acts like a trusted friend or colleague. However, when the co-worker is out of earshot, this person will destroy his colleague’s reputation, stab him in the back and even take credit for his work.
3.      The Constant Critic. This bully’s goal is to dismantle other people’s confidence through constant and often unwarranted criticism. A critic will look for any possible flaw in someone’s work and labors tirelessly to kill that person’s credibility. Impeccable work? No problem: This type of bully isn’t above falsifying documents or creating evidence to make others look bad.
4.      The Gatekeeper. Every office has at least one employee who enjoys wielding his or her power over others, regardless of whether that power is real or perceived. Gatekeepers deny people the tools they need, whether it’s resources, time or information, to do their jobs efficiently.
5.      The Attention Seeker. This type of bully wants to be the center of the action at all times. They’ll try to get on their superior’s good side through consistent flattery and even come on as kind and helpful to their peers, especially the newer employees. However, if co-workers don’t provide the right amount of attention, these bullies can quickly turn on them. Attention seekers are often overly dramatic and relate everything to something that’s going wrong in their own lives to garner sympathy and control. These bullies also have a tendency to coax personal info out of new employees only to use it against them later.
6.      The Wannabe. This is an employee who sees himself or herself as absolutely indispensable and expects recognition for everything. But Wannabes aren’t usually very good at their jobs. To compensate, these bullies spend a majority of their time watching more competent workers and looking for areas of skilled workers’ performance to complain about. Wannabes will demand that everything is done their way, even when there are better ways of doing things. Because they’re automatically opposed to others’ ideas, they’ll do everything in their power to prevent changes to their work processes.
7.      The Guru. Generally, there’s nothing wrong with this bully’s work performance. In fact, it’s not unusual for a Guru to be considered an expert in his or her own niche area. What these bullies offer in technical skill, however, they severely lack in emotional maturity. Gurus see themselves as being superior to their co-workers. As a result, they don’t consider how their actions will affect others, aren’t able to fathom the possibility that they can be wrong and don’t accept responsibility for their own actions. In addition, because these bullies feel as though they’re “above it all,” they don’t always feel compelled to follow the same rules as everybody else.
8.      The Sociopath. Intelligent, well-spoken, charming and charismatic, sociopaths are the most destructive bullies of all. Reason: They have absolutely no empathy for others, yet they are experts at manipulating the emotions of others in order to get what they want. These bullies often rise to positions of power within the company, which makes them extremely dangerous. Sociopaths tend to surround themselves with a circle of lackeys who are willing to do their dirty work in exchange for moving up the ranks with them.
The best defense a company can have against workplace bullying is a clearly worded policy that prohibits any type of bullying behavior.
Here are some components every good anti-bullying policy should include:
        a clear definition of what is considered bullying – along with a list of some of the actual behaviors that meet the definition
        an outline of how employees can report bullying, including guidance on what to do when the bully is the manager
        a detailed explanation of the complaint and investigation process that will take place
        a “no retaliation” clause to help employees feel safe about reporting problem behavior, and
        a list of consequences of violating the anti-bullying rules.

(HRMorning website)

Monday, August 17, 2015

Proper Maintenance of Eyewash Stations

OSHA Issues Warning about Contaminated Eyewash Water
OSHA published an Info sheet on August 7, 2015, highlighting the infection hazards that may be present when emergency eyewash stations are improperly maintained. Eyewash facilities are required in workplaces where corrosive chemicals are used and in HIV and HBV research laboratories and production facilities and “where there is any possibility that an employee’s eyes may be splashed with solutions containing 0.1 percent or greater formaldehyde,” while research and production laboratories and medical facilities also may have them.
“How can improperly maintained eyewash stations cause infections? Water found in improperly maintained eyewash stations is more likely to contain organisms (e.g., Acanthamoeba, Pseudomonas, Legionella) that thrive in stagnant or untreated water and are known to cause infections,” it states. “When a worker uses an eyewash station that is not maintained, organisms in the water may come into contact with the eye, skin, or may be inhaled. Workers using eyewash stations after exposure to a hazardous chemical or material may have eye injuries that make the eye more susceptible to infection. Also, workers with skin damage or compromised immune systems (e.g., transplant recovery, cancer, lupus) are at increased risk for developing illnesses from contaminated water.”
The document recommends complying with the ANSI/ISEA standard, Z358.1-2014, which says plumbed systems should be activated weekly to eliminate these hazards.
“Self-contained eyewash units must be maintained and employers should consult the manufacturer’s instructions for maintenance procedures. This includes flushing the system and using only solutions appropriate for flushing eyes,” the document states.
The complete Info sheet can be read here.

Tuesday, August 11, 2015

Contaminated Laundry OSHA Standard

Contaminated Laundry

Contaminated Laundry, as outlined in the Blood-borne Pathogen Standard definitions, as: laundry which has been soiled with blood or other potentially infectious material or may contain sharps.

Potential Hazard 

Exposure to blood or other potentially infectious materials through contaminated laundry that was improperly labeled, or handled.

Possible Solutions 

Follow the procedures outlined in the Blood-borne Pathogens Standard handling contaminated laundry such as:
  • Handle contaminated laundry as little as possible with minimal agitation.
  • Bag contaminated laundry at the location of use. Do not sort or rinse laundry at the location where it was used.
  • Place wet contaminated laundry in leak-proof, and color-coded or labeled containers, at the location where it was used.

Whenever contaminated laundry is wet and presents a reasonable likelihood of soak-through of or leakage from the bag or container, the laundry shall be placed and transported in bags or containers which prevent soak-through and/or leakage of fluids to the exterior.

Contaminated laundry must be placed and transported in bags or containers labeled with the bio-hazard symbol or put in red bags.

In a facility that utilizes universal precautions in the handling of all soiled laundry-alternative labeling or color-coding is sufficient if it permits all employees to recognize the containers as requiring compliance with universal precautions.

Use red bags or bags marked with the bio-hazard symbol, if the facility where items are laundered does not use universal precautions for all laundry.

Contaminated laundry bags should not be held close to the body or squeezed when transporting to avoid punctures from improperly discarded syringes.

Normal laundry cycles should be used according to the washer and detergent manufacturer's recommendations.

Monday, August 10, 2015

Employee Handbook Guidelines

Guidelines for Employee Handbooks
An employee handbook is essential for the well-being of every organization. It communicates the employer’s mission, vision and culture, as well as information on rules, policies and benefits. It also contains information on state and federal employment laws.
When well-constructed, employee handbooks help employers build trusting relationships with workers, avoid conflicts and ensure fair treatment in the workplace. When poorly written, they can create a nightmare of situations for HR, ranging from hostile work environments to lawsuits.
According to Allan H. Weitzman, head of the Labor and Employment Law Department of Proskauer Rose LLP, when it comes to employee handbooks, “every word counts.” He says there are seven principles every HR professional should follow when creating one:
1.      Make sure your handbook is NOT an employment contract.
2.      Plainly state employer rules, regulations and procedures.
3.      Describe your policies designed to assist employees.
4.      Communicate your commitment to equal opportunity.
5.      Set guidelines for the termination of employment.
6.      Develop cutting-edge policies.
7.      Incorporate state and local legal requirements into your handbook.

It is imperative that employers update their handbooks on a regular basis to ensure compliance with all state and federal employment laws and with changes to their own policies and procedures. When faced with lawsuits by employees, these check-ups could make or break an employer’s case in court.

Tuesday, August 4, 2015

Magnets for HR Lawsuits - Inconsistency & Retaliation

HR Inconsistency and Retaliation—Lawsuit Magnets

Follow Disciplinary Procedures
If you conduct an investigation and you find that an employee has violated the law or your employment policies, you need to follow your general disciplinary policies and procedures in meting out punishment.
Your disciplinary systems should:
  • Ensure that the appropriate discipline is applied (the punishment fits the crime).
  • Ensure that discipline is consistent for all employees.
  • Give employees fair warning that they have violated company policies.
  • Give employees a chance to improve.
  • Create a paper trail of evidence to show what the employee did and how you responded.

Make sure you follow your discipline system consistently. Disciplining some employees but not others for the same types of problems is just asking for a discrimination claim.

Watch Out for Retaliation
Almost all of the federal employment laws prohibit retaliation against employees who exercise their rights under those laws. That includes the employment discrimination statutes as well as other laws granting protections to employees, such as the Family and Medical Leave Act, the Fair Labor Standards Act, and many others.
In general, retaliation is any adverse action that’s taken against an employee for filing a complaint, supporting another employee’s complaint, or otherwise asserting the employee’s rights under a federal employment law. In the context of firing, the most common type of retaliation claim involves an employee who alleges he or she was fired for complaining about harassment or discrimination.

Double Check
Before making a final decision to fire someone, it’s helpful to step away for a moment to take a look at the big picture. Ask yourself if there’s any chance that you’re firing the employee for some reason other than the one you claim. Is the employee being treated differently from other employees with similar performance or misconduct deficits? If so, why? Is there anyone in the company who will be glad to see the employee go? If so, why? If the underlying reason for their feelings is discrimination or retaliation and they had any influence in the firing decision, you could be in big trouble.
What if you make the wrong decision? A growing number of courts say that when an employee claims he was wrongfully discharged for misconduct, the issue isn’t whether he’s guilty but whether you reasonably believed he was guilty. As long as your investigation was fair and your conclusion reasonable, you’ll be protected from liability even if you were wrong.

Document Everything

No matter how diligently you follow your disciplinary procedures, no matter how honest and fair your evaluations, it won’t mean much in court without clear documentation to support your decision.