A thorny case in Paramus, New Jersey gives employers some guidance on what to do if HIPPA and OSHA regulations conflict.
A medical center recently reversed its suspension of a nurse after the U.S. Labor Department conducted a whistleblower investigation. The nurse was reinstated with full payment for past salary at the Bergen Regional Medical Center in Paramus.
The problem started when a nurse reported a violent workplace incident to her union, the Health Professionals and Allied Employees union (HPAE). The nurse named a patient who had assaulted her. The nurse was suspended for three days by her employer, who claimed that the report violated the patient’s right to confidential medical records.
The nurse, and eventually the U.S. Department of Labor, argued that the nurse was being unfairly discriminated against or punished for exercising her workplace health and safety rights. In this case, that would be the right not to be assaulted at work.
According to a recent study, nurses are as likely to be assaulted on the job as prison guards or policemen. Yet, all too often, nurses are told that being punched, kicked, spat upon and even attached with knives is simply “part of the job.” While a number of states, including Massachusetts, are taking measures to protect nurses, some employers lag behind.
“Our investigation found that this activity did not constitute a HIPAA violation because employees can report a threat of violence to a supervisor, union official or OSHA without violating HIPAA,” said Patricia K. Clark, OSHA’s regional administrator in New York, adding that the agency has published a fact sheet on the issue to prevent any future confusion.
HIPAA requires that medical facilities including doctors, hospitals and clinics protect the privacy of a patient’s medical records and information. Any person or organization that furnishes bills or is paid for healthcare is covered under the law, as are most employers. Under most circumstances, and individual must give written consent before their healthcare records can be shared. However, employees may disclose protected information when they are reporting conditions that pose a serious threat to patients, employees or the public.
In addition to reversing the suspension, the medical center agreed to reimburse the nurse’s full salary for the three-day suspension. The employer will also expunge any reference to the suspension from her personnel file.
With demand for healthcare workers and especially nurses reaching, an all-time high, the issue of violence in the workplace is gaining importance. Nurses in the emergency room and those in psychiatric wards are the most likely to be attacked. Yet, many hospitals fail to protect employees, according to the Massachusetts Nursing Association. Many nurses are told to ignore attacks by patients, even when they result in potentially life-threatening situations. Others are discouraged from reporting attacks, and told that dealing with enraged, combative patients is simply part of the job.
Some states are taking measures to correct this problem. A bill currently before the Massachusetts House of Representatives would require health care providers to implement a comprehensive program to prevent workplace violence, including attacks against nurses. The bill would require that employees develop annual risk assessments and develop violence protection plans. It would also require workplaces to provide counseling for victims of violence.
Among those testifying at the hearing were several nurses who are recent victims of workplace violence. These include an emergency department nurse at St. Elizabeth’s Medical Center who was exposed to HIV and Hepatitis C when an intoxicated patient tried to punch her, dislodging an IV line. The nurse had to undergo a debilitating round of medication to prevent infection, which has left her sick, weak and depressed.
In another case, the relative of a patient threatened a nurse, telling her that he would be waiting in the parking lot after her shift. When the nurse reported the threats to the police over her supervisor’s objections, she was suspended for three days. At the nurse’s request, the police escorted her outside after her shift, where they found the assailant waiting near her car with a knife.
An Associate Professor at the University of Massachusetts, Craig Slatin, said nurses that are often subject to physical violence, racial slurs and threats from patients and the relatives of patients. “Managers don’t understand the seriousness of these issues and how they relate to the care of their workers,” he said.
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Sometimes, being a hero isn’t all it’s cracked up to be. Vincent Rennich is a non-smoker who claims that exposure to second-hand smoke at the casino where he worked caused him to develop lung cancer. He became an outspoken critic of smoking in the workplace, earning the 2007 Smoke Free Hero of the Year award by Americans for Nonsmokers’ Rights.
Now, the New Jersey employee claims that he has been illegally fired for testifying about his case.
Casinos are the last bastion in the battle for smoke-free workplaces in many states. A number of states, including Illinois, have recently enacted smoking bans that include casinos. Others, like Michigan, are considering such a ban.
On April 15, 2006, New Jersey enacted a law that bans smoking in most workplaces. The law bans smoking in most offices and workplaces. It does, however, permit smoking in tobacco stores, cigar bars and casinos.
Rennich, a native of Somers Point, New Jersey, was just one worker who testified about the dangers of second-hand smoke in the workplace, during a recent hearing before the New Jersey Senate Health, Human Services and Senior Citizens Committee. Rennich’s testimony specifically concerned casinos.
Rennich urged the committee to consider a ban on smoking in casinos. After working at the Tropicana Casino and Resort in Atlantic City for 26 years, Rennich developed lung cancer. According to medical experts, lung cancer is rare in non-smokers. Rennich’s doctors concede that his daily, prolonged exposure to second-hand smoke probably was a factor in him developing the deadly disease.
Rennich, who has never smoked a cigarette in his life, discovered the disease only by accident – literally. Rennich had x-rays and medical tests after being involved in an automobile accident, which uncovered the lung cancer. Since his treatment for cancer began, Rennich has become a vocal advocate for smoking bans at casinos, including the New Jersey Smoke Free Air Act.
After the hearing, state Senator Robert Singer, a republican from Burlington, Mercer, Monmouth and Ocean, thanked Rennich and the other casino employees for testifying. The Senator specifically noted that “you’ve put your jobs on the line”, a comment that some felt could be a veiled threat.
In fact, New Jersey, like most other states, has stringent whistleblower laws that prevent firing or any retaliation against workers who act in good faith to report serious problems in the workplace.
The testimony was just the latest in Rennich’s quest for justice in the case. One year ago, he sued the Tropicana for providing an unhealthful workplace that caused his cancer.
One week after Rennich’s testimony, he was fired from the Tropicana Casino and Resort in Atlantic City, where he had worked for more than 26 years. The suit claims that the termination is a violation of the New Jersey Conscientious Employee Protection Act.
A casino spokesperson insists that Rennich’s termination had nothing to do with his visibility as an advocate of smoking bans in casinos. The Tropicana was recently sold by the Aztar Corporation, to Columbia Sussex Corporation. In less than 3 months, Columbia Sussex has laid off about 700 employees. Columbia Sussex cites the 15% reduction in workforce as a simple cost-cutting move.
Rennich’s attorney is not buying that explanation. “I think it’s simply too convenient (to say) that his termination is part of a larger downsizing, given the very outspoken and public position that Mr. Rennich has taken regarding a smoke-free workplace,” Rennich’s attorney, Jeff Carton of White Plains, N.Y. said in a news conference.
“I don’t know anything about the other 700 people, I just know what they did to me,” Rennich added. “It’s just wrong. It’s pretty obvious they used that excuse to try and silence me.”
According to Rennich, the firing has created personal and financial problems for his family. Unable to find another job, he has paid $1,300 for health benefits. Rennich spends most of his time speaking against smoking in the workplace.
Despite lost wages, emotional pain and legal fees, Rennich has vowed to continue his struggle for non-smoker’s rights in the workplace, “Until they close the lid on me, I’m not going to give up.”
Here’s the latest news on the New Jersey job front. The Labor Department is joining hands with a 205,000 member strong human resource managers’ association to open up job opportunities for the disabled.
New Jersey workers with disabilities will benefit from the alliance. The policy agency within the Labor Department is the Office of Disability Employment Policy, or ODEP. The private group is the Society of Human Resource Managers, or SHRM.
Job opportunities for disabled workers have grown in recent years. Yet, according to the Labor Department agency involved in the new partnership, the talents of many disabled workers are still going untapped. The new alliance should put together a package of communication, outreach, technical help, training, and education for this underused workforce.
The federal agency is ODEP. That stands for the Office of Disability Employment Policy. The private group is the Society of Human Resource Managers, or SHRM. Its mandate is to find employment opportunities for people of all abilities.
This is the first such partnership for ODEP.
“This alliance formalizes the relationship we have had with SHRM,” says Roy Grizzard, Assistant Secretary of Labor for Disability Employment Policy, noting that it benefits SHRM as it “serves its membership with resources ODEP brings to the table and offering ODEP the opportunity for broader contact with human resource professionals.” Together the two groups should be able to enhance recruiting and hiring of this population of workers with the help of access, research, and education.
SHRM is the Society of Human Resource Managers. Its membership exceeds more than 205,000 now. It has 550 affiliated chapters, and its membership is far flung – they are found in more than 100 countries around the world. The organization was founded in 1948 with a goal of helping human resource professionals. It does this by offering them all-inclusive and indispensable resources.
The Federal Office of Disability Employment Policy (ODEP) is a 21st century phenomenon, a policy agency under the Labor Department. In 2001, U.S. Secretary of Labor Elaine Chao assigned responsibility and delegated authority to what was then the assistant secretary for disability employment policy.
You and your human resource department do a great job of tracking all of your employees days off and starting days and personal days using an attendance calendar. You even have a separate calendar for annual attendance to track all of your employees’ days off over the course of a 12 month period. And for those seven-day weeks (or five-days week for those office settings) you have forms for weekly time sheets.
With all of that time tracking for all of your employees, shouldn’t you find it no problem then to report to the state of New Jersey, employers, when you have a new hiree starting in your organization? You would think.
The information that the state of New Jersey is requesting is the basic type of information that you already got from your new employees during the hiring and orientation periods. You have to report their names, their addresses, and their social security numbers. The New Jersey authorities and the federal officials would also love it if you could report their hiring date, their birthday, and the state of their hiring.
But again, all of that information probably is already on your employment application from. If not, you have their W-4 form that they filled out when they first signed on with your company. Or you could check out their employee emergency information form for addresses, or their employee payroll status change form for their social security number.
There are any number of forms that you probably have in their employee file that already contain all of the information, and then some, that you need to meet and exceed the requirements of the New Jersey new hire reporting labor law.
And the rest of the info that the state of New Jersey needs to have is about you, the employer, so that shouldn’t be difficult to track down.