Communication Helps Avert Litigious Situations


Clear and direct communication with employees can help employers avoid litigation
, according to Gregory Andrews, a veteran attorney with Jackson Lewis, a national firm specializing in employment law. It may seem obvious, but many organizations do not heed this advice. Mr. Andrews offered valuable insights into employer-employee communication strategies at RYAN Associates’ 26th annual national conference on Providing Healthcare Services to Employers. Employers, particularly human resources and supervisory staff, should follow established communications strategies to avoid misunderstandings and conflicts with employees, he said.

Among his recommendations:

  1. BE MORE PROACTIVE: Human resource professionals and frontline supervisors are responsible for initiating contact with employees when red flags such as frequent absences surface. Identifying potential problems early on can help reduce the likelihood of disagreements, confusion, hostility, and litigation. Employers have an “affirmative duty” to act when employees need intervention to be able to safely perform their job, such as accommodations for a newly diagnosed disability or while recovering from an injury.
  2. PROTECT PRIVACY: Employers should studiously protect their employees’ privacy to avoid claims under the Health Insurance Portability and Accountability Act (HIPAA) and the Americans with Disabilities Act (ADA). If an employee needs an accommodation because of an injury, illness, or disability, the exact nature of the condition is protected personal information. The employer may only ask the medical provider basic questions such as: “Can the employee perform required tasks? If not, what accommodation is required? How long is the condition expected to last? What specific tasks is the employee capable of performing?”
  3. UNDERSTAND APPLICABLE LAWS: The dynamic nature of occupational health- and safety-related statutes makes compliance challenging for employers who want to preserve the stability and productivity of their day-to-day operations while maintaining the dedication and morale of their employees, Mr. Andrews said. One example of this is the ADA Amendments Act of 2008, which heightened sensitivity to the nature of employer-employee communication and requires greater vigilance on the part of all stakeholders. Federal statutes and state regulations impose specific burdens on employers and employees, sometimes with overlapping or even conflicting purposes.

For example:

  • AMERICANS WITH DISABILITIES ACT:
    • Goal: access to jobs
    • Mechanism: “reasonable accommodation” (ADA definitions)
    • Communication strategy: document the interactive process
  • FAMILY AND MEDICAL LEAVE ACT:
    • Goal: job preservation
    • Mechanism: leave of absence
    • Communication strategy: document certification of health care provider
  • STATE WORKERS’ COMPENSATION RULES:
    • Goal: compensate for loss of earnings and job preservation
    • Mechanism: determine cause and extent of injury
    • Communication strategy: document availability of light duty
  • OCCUPATIONAL SAFETY AND HEALTH ACT:
    • Goal: reduce risk of injury and illness in the workplace
    • Mechanism: communicate and reduce hazards
    • Communication strategy: document training and hazard reduction

LITIGATION AVOIDANCE Mr. Andrews offered these five litigation-avoidance tips:

  1. Communicate proactively with employees. For example, if an employee has frequent absences, inquire about what can be done to address the situation.
  2. Do not ask questions about an employee’s specific medical condition or health status. Ask the employee to obtain documentation from his or her clinician that shows what tasks the employee is capable of doing.
  3. Anticipate staffing situations that may require modifying the hours and/or tasks of an employee who has a chronic disability or episodic illness.
  4. Ensure that human resources staff communicates with employees about repeated absences or an apparent inability to complete tasks they had performed in the past.
  5. Keep abreast of legal and regulatory statutes, such as how to obtain documentation from a health care provider, employee rights to confidentiality under HIPAA, and protections afforded by the Genetic Information Non-Discrimination Act (GINA) and the ADA Amendments Act.

AAOHN COLLABORATION

RYAN Associates and the NAOHP will expand collaboration with the American Association of Occupational Health Nurses (AAOHN) in 2013 through a number of educational forums.

The AAOHN will sponsor a three-session webinar series on the role of nurses in occupational health sales and marketing beginning in January. Frank Leone, president and CEO of RYAN Associates and executive director of the NAOHP, will teach all three sessions, which will be held from noon to 1 p.m. Eastern time on the following dates:

  • JAN. 24: OCCUPATIONAL HEALTH MARKETING
  • JAN. 31: OCCUPATIONAL HEALTH SALES
  • FEB. 7: 40 ESSENTIAL SALES AND MARKETING TIPS

For information: www.aaohn.org/upcoming-webinars/

At the AAOHN’s annual national conference (April 14-17 at the Cosmopolitan Hotel in Las Vegas), Mr. Leone will teach a special half-day session on Marketing, Communication, and the Occupational Health Nurse on April 14. The NAOHP also will be an exhibitor at the conference.

For information: www.aaohn.org/2012-national-conference/aaohn-2012-national-conference.html

COACHING AND MENTORING

Beginning March 15, RYAN Associates will sponsor “Coaching and Mentoring in Occupational Health Sales and Marketing,” a 10-week telephonic program capped at 10 registrants. The sessions will be held 10 consecutive Fridays from noon to 1 p.m. Eastern time.

URGENT CARE ASSOCIATION OF AMERICA

Donna Lee Gardner, a nurse and senior principal with RYAN Associates, will speak on an occupational health-related topic at the annual conference of the Urgent Care Association of America (UCAOA) April 8-11 at the Dolphin Hotel in Orlando, Fla. The NAOHP will also participate as an exhibitor at the conference.

AMERICAN OCCUPATIONAL HEALTH CONFERENCE

RYAN Associates and the NAOHP will be represented at the American Occupational Health Conference (AOHC) sponsored by the American College of Occupational and Environmental Medicine (ACOEM) April 28-May 1 at the Rosen Shingle Creek Resort in Orlando. Mr. Leone is scheduled to lead a 90-minute session on “Communication and the Occupational Medicine Physician.” The NAOHP will also be an exhibitor. For information: www.acoem.org/aohc.aspx.

Nashville Venue for RYAN Associates’ 27th Annual National Conference

RYAN Associates will return to the Loews Vanderbilt Hotel in Nashville, aka Music City, USA, for its 27th Annual National Conference, Oct. 21-23, 2013.The conference will feature a baker’s dozen of educational tracks, a full slate of special weekend offerings, and an array of top-notch social events.NAOHP members are being surveyed to solicit their input on conference topics. Faculty members will be recruited in early 2013. Full conference details will be available in the spring.

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