Here are the answers to five individual questions managers often encounter. They are outlined by attorney Shari L. Lane of Northwest Employment Law in Portland, OR.
Changing the face of the job
1. Can the office require an employee to take on a different work schedule or move to another location? What if it affects the employee’s child care or family responsibility arrangements?
In most instances, the office can make whatever requirements it wants, Lane says. In general, “the employer calls the shots” and can require an employee to change work hours or work location even if doing so poses an inconvenience. But there are exceptions. For example, the requirement can’t interfere with some protected activity the employee is currently exercising. Suppose the staffer is taking leave under the Family and Medical Leave Act and is coming in at 10:00 a.m. every day. If requiring that staffer to come in at, say, 8:00 a.m. would in essence nullify the approved leave, the office can’t require it.
And if the staffer has taken the leave to care for a child or parent who is disabled, the office could also meet with a discrimination claim under the Americans with Disabilities Act.
Be careful too of the appearance of retaliation. If the staffer has recently complained of some type of discrimination or of not being paid overtime, the change could be seen as an effort to make the job unnecessarily difficult so the staffer will resign.
And retaliation is far reaching, Lane adds. Even if the schedule or location change is being made for a legitimate business reason, if that staffer is the only employee who has to make the change, suspicion can arise.
For safety in all corners, she recommends writing a memo to the staffer’s file outlining the business reasons for the schedule change – perhaps that the staffer is the receptionist and that the office is adding a new physician and now needs the receptionist to answer the phones at 8:00 a.m. In addition, explain to the staffer why the change is necessary and document the discussion.
Looking into absences
2. Can the office require a doctor’s written verification when it suspects a staffer is faking illness?
Avoid the issue entirely by setting a written policy for requesting doctor’s notes, perhaps that a doctor’s note is required for absences longer than three days.
But add a little leeway to it, Lane says. Phrase it as “if you see that you will be absent for more than three days or if we have some other reason for needing information, we may ask for a doctor’s note.”
Then stay aware of the possibility of discrimination claims. Don’t apply it to a staffer in a protected category and not to everybody else in the same situation.
Denying vacation requests
3. Can the manager deny a staffer’s vacation request?
Yes. But still there’s risk. For example, if Employee Female’s request gets denied while two male employees get the same time she requested, there could be a claim of gender discrimination. Once again, the defense is a memo in Staffer Female’s file outlining the business necessity for the denial. And that defense will be even stronger if the office’s vacation policy says management approval is required for vacation. Further, explain the reason to the staffer, perhaps “As you know, your position here is key. You are the only one who can do what you do. Therefore we have to be more restrictive in granting your requests for time off.” And document the conversation. A face-to-face honest conversation with an employee explaining the why of what the office is doing is often the best deterrent to dissatisfaction.
Ending job-related conversations
4. A staffer files an EEOC complaint and then tells the other staff about it and the unfair circumstances that prompted it. Can the manager stop the talk?
As a general rule, “don’t try to prohibit people from talking about something,” Lane says. Employees have the right to complain about working conditions as well as the employer’s alleged unlawful activity, and the EEOC prohibits retaliation against somebody who does that. Many state laws give similar protection. But that doesn’t mean the manager has to allow the talk to go on unchecked. If it affects productivity, address it. The office can’t forbid discussion on the topic, but it can forbid the discussion from interfering with business. Tell the staffer “we have the same expectations of productivity we have always had, and if you’re spending half an hour talking about this, it’s inappropriate.”
A good way to handle that situation, Lane says, is to address the problem with all the staff.
Tell staff the office is aware that an EEOC claim has been filed, that it respects any employee’s right to file a claim, and that it is doing its best to respond appropriately. And to that add that while there’s no restriction on what employees can discuss on their own time, the office is a place of business and personal discussions need to be saved for nonworking hours. Point out too that personal discussions should not take place on the office’s computers or telephone and that an employer has a right to access and restrict emails sent over its system. Along with that, tell staff they cannot discuss the office’s business on social media or in outside conversations, because what’s said could violate patient confidentiality.
What to do about bad language
5. A staffer complains that a physician uses bad language that is offensive. Is that harassment? How should the manager address it?
“There’s no way to draw a line” on what can and can’t be said in the office, she says. What offends one person may not offend another As long as the remarks aren’t directed to gender, race, or some other protected class, they aren’t illegal. And even if they are directed that way, if nobody is offended by them, they aren’t harassment. The U.S. Supreme Court has said that “Title VII is not a general civility code,” Lane explains. “What may be patently inappropriate or rude is not necessarily harassment.”
But that doesn’t give employers free rein to use whatever language they want. If a staffer complains of it, and if the language is a part of “an overall pattern of behavior such as inappropriate jokes, e-mails, and postings,” the manager needs to take action. When there’s a complaint of “I don’t like how Doctor A is talking,” her advice is to investigate it as if it were a harassment complaint. If it turns out the staffer is overly sensitive and there’s been no harassment, ask the physician not to use the language around that person. Then tell the staffer “we don’t think there is a violation of the law. But we have asked Doctor A to be more sensitive about the language when you are around.”
And to avoid the issue altogether, she says, set up a code of professional behavior for the office and in it prohibit inappropriate language.
