In the law of professional negligence, the standard of care is the benchmark by which others assess a veterinarian’s competence. To be within the standard of care, veterinarians must perform their duties with an average degree of skill, care and diligence exercised by colleagues practicing under the same or similar circumstances. Unfortunately, this is a general rule and not always helpful when one is trying to determine whether or not to do something in a given situation. For example, when is it or isn’t it necessary to refer a patient?
In general, compared to other professionals, veterinarians are minimally regulated. Aside from the state board of examiners, DEA and OSHA, few governmental agencies interfere with how we practice medicine. This is a good thing, because veterinarians can still exercise independent judgment. It is a bad thing, however, because it is not clear as to what and what is not the standard of practice. For this reason, authors of this manuscript have compiled a set of veterinary care standards for various exotic species. We believe that it is better such standards are articulated and published “within” and “for” the industry, rather than waiting around and having the lawyers and courts determine the standards one by one, each at the expense of a veterinarian’s career.
There are primarily two areas of law that regulate the conduct of veterinarians and help ensure that veterinarians act prudently and reasonably in their dealings with clients and their animals. The first is the civil court system that adjudicates claims made by clients who allege that their veterinarians have acted negligently. The second is the state board of examiners which is an administrative office charged with enforcing a state’s veterinary practice act which sets forth laws with which veterinarians must comply to obtain and maintain their veterinary licenses. In performing their daily clinical duties, veterinarians should be cognizant of these two areas of law since they represent the two principle avenues by which clients may have complaints addressed.
Receiving letters from the state board of examiners and or a disgruntled client’s attorney can be very distressing, causing veterinarians to respond impulsively and not always in their best interests. This is especially the case with veterinarians who have been practicing for only a few years since they are not likely ever to have been named in a lawsuit or reprimanded by a regulatory agency. It is important for veterinarians to realize that how they initially respond to such allegations can have a significant impact on the outcome. For this reason it behooves us to become knowledgeable about the processes by which state boards and the courts adjudicate such allegations. The following scenario illustrates how these procedures work in real life.
Mrs. Bridges brings in Martinique, her 2 year-old female iguana, to Dr. Steel, a small animal practitioner who prides himself in being knowledgeable about exotics as he is a member of the Association of Avian Veterinarians. Mrs. Bridges informs Dr. Steel that Martinique has not eaten for 2 weeks and after performing a physical examination, Dr. Steel diagnoses “Egg Binding”, a common condition in both birds and reptiles. Without advising Mrs. Bridges of his limited experience with reptiles, nor offering her a referral to a colleague who has more experience, Dr. Steel obtains Mrs. Bridges’ consent to perform a spay surgery on Martinique. Dr. Steel has performed many spay surgeries on birds to treat “Egg Binding”, and performs the same surgical procedure on Martinique whereby he removes the shell glands without removing the ovaries. Martinique is sent home and recovers well from surgery after 3 weeks of antibiotics and hand feeding.
Next spring, Martinique goes off her food again, but this time, she is lethargic and has a markedly swollen abdomen. Mrs. Bridges is concerned this is a recurrence of the same problem and brings Martinique to a new vet in town, who advertises herself as an exotic veterinarian with expertise in reptiles, birds and pocket pets. Dr. Zoo examines Martinique, performs an x-ray and ultrasound, and diagnoses “Egg Binding.” Mrs. Bridges is puzzled and frustrated as to why Martinique has the exact same condition, when the surgery performed by Dr. Steel, a year ago, should have permanently fixed the problem. Dr. Zoo, also is confused, and with Mrs. Bridges’ consent obtains a copy of Martinique’s medical records and contacts Dr. Steel.
The medical records are vague at best. The only notation relative to the surgery is “spayed, surgery routine, recovery uneventful.” Dr. Steel confirms the information in the medical records and informs Dr. Zoo, in a patronizing manner, that his experience is that reptiles are just like birds, and their shell glands can be removed without removing their ovaries. In a defensive tone, he tells her that he has been performing these procedures on reptiles long before she was ever admitted to veterinary school.
Dr. Zoo responds to Dr. Steel by informing him of her residency training in exotics, experiences working at various zoos around the country, and tells him that reptiles are not at all like birds and must have their ovaries removed. She further explains that since the ovaries were not removed during the first surgery, Martinique has re-presented with the same symptoms because she has ovulated eggs, which are now in the coelomic cavity. In fact, she tells Dr. Steel that it is likely that Martinique was just pregnant a year ago and did not have “Egg Binding” condition as he had diagnosed and due to his misdiagnosis, Martinique will need a second surgery.
After speaking with Dr. Steel, Dr. Zoo informs Mrs. Bridges that Martinique will need a second surgery and discusses the procedure and fees involved. Mrs. Bridges, who is angry that she has to pay a second time for the exact same procedure, asks Dr. Zoo to discount her fees. While sympathetic and understanding, Dr. Zoo explains to Mrs. Bridges that a discount is not possible. Frustrated, Mrs. Bridges leaves Dr. Zoo’s hospital with Martinique. Later that night Martinique became weak, started mouth breathing and was unresponsive to touch. Mrs. Bridges rushed her pet to the local emergency clinic where the doctor on duty performed an emergency exploratory. Sadly, Martinique died during the recovery.
Three months later, Dr. Steel receives two letters; one from the State Veterinary Board of Examiners and another from Mrs. Bridges’ attorney. The state board letter requests Dr. Steel to respond to Mrs. Bridges’ assertions that Dr. Steel was negligent in (a) failing to inform her that the he was not experienced in treating reptiles; (b) failing to offer a referral to a veterinarian who was qualified and experienced in treating reptiles; (c) misdiagnosing Martinique’s condition; (d) performing a surgical procedure below the standard of care; and (e) failure to maintain appropriate medical records. The correspondence from Mrs. Bridges’ attorney includes a copy of a complaint filed with the state court alleging malpractice and a demand for $100,000, for economic and emotional distress damages.
What should Dr. Steel do?
Responding to Allegations of Professional Malpractice
How veterinarians address such accusations will in part depend on whether the allegations are in the form of a lawsuit, state board complaint, or both. Regardless of the form in which the allegation is made, the first step veterinarians should take is to carefully read the complaint and determine what is being requested of them and in what time frame. Once this information has been assimilated, they should gather the pertinent medical records and any other documentation relating to the services in question and write down in chronological order their recollection of the events.
In this case, the complaints allege that Dr. Steel performed a procedure for which he had insufficient knowledge, failed to refer the case and had poor medical records. The facts indicate that Dr. Steel examined Martinique, made a diagnosis and performed the spay to treat the “Egg Binding.” Dr. Steel should carefully review the medical records to corroborate his recollection of the events. Unfortunately in this case, because the documentation is poor, it will be a scenario of Dr. Steel’s word against Mrs. Bridges’. For example, it will be difficult for Dr. Steel to claim that he informed Mrs. Bridges of alternatives, including a referral, as there is no such notation in the records. Since Dr. Steel has a legal obligation to maintain medical records, the fact that he hasn’t will imply that he also was careless with his medicine. As he reviews the records, Dr. Steel should write down the events that led to Mrs. Bridges’ complaint. Most veterinarians will find this helpful since it will refresh their memories, help them develop a consistent “story” as to what happened, and provide a draft from which to develop a written response.
So as not to compromise his defense in the lawsuit, Dr. Steel should immediately upon receiving the complaint, contact his professional liability insurance carrier and ask for advice. However, if Dr. Steel suspected earlier that Mrs. Bridges was likely to pursue legal action, he should have contacted his insurance carrier at that time. Insurance carriers may differ in how they handle negligence actions, but usually require the defendant to fill out a claims form in which the veterinarian describes the circumstances that led to the claim. A claims representative then reviews the facts, makes a recommendation as to a course of action and may assign an attorney to the case if the complaint cannot be settled quickly. In this case, if Mrs. Bridges is offered a settlement and rejects it, it is likely an attorney would be assigned to defend Dr. Steel since in this case it appears that Dr. Steel’s care was substandard in several respects.
In dealing with the letter from the state board, Dr. Steel should be aware that he will most likely be defending his conduct at his own expense, since professional liability insurance carriers generally do not provide coverage for state board actions (exception: AVMA-PLIT now offers a limited policy insuring against state board actions). While Dr. Steel may respond on his own, it is usually advisable for him to obtain legal advice as to how he should respond to the allegation(s) and at the very least have an attorney review his letter. In drafting his response, Dr. Steel should not underestimate the time and effort it will take to address all the issues in the complaint, in an organized and articulate manner. Responses that are, disorganized, incomplete and difficult to follow, often lead to further investigation by the board as opposed to an early dismissal of the charges. Additionally, Dr. Steel may find it helpful to consult with other veterinarians to determine whether they use inform their clients of alternatives and/or “wing it” on exotic patients. This will assist Dr. Steel in determining whether he acted within the standard of care and provide an indication as to his liability.
The burning issues for Dr. Steel of course, are whether he was negligent in failing to (a) refer Martinique, (b) remove the ovaries and, (c) maintain proper medical records. Our courts and juries decide negligence on a case by case basis in light of the specific facts and circumstances of each situation, but, veterinarians should be aware of a few general principles. First and foremost, it is important to note that a veterinarian can be found negligent even if he or she did not intend to cause harm. Simply put, “I didn’t mean to” is no defense to “you should have known better”. A simple mistake can lead to liability.
Secondly, veterinarians can be found negligent even if the rest of their colleagues would have acted in the exact same way. Judges can determine that the entire industry is at fault if it is in the public’s interest. Judge Leonard Hand, a famous judge once wrote in his opinion “[c]ourts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.” Hence it is a false security to rely on what the rest of your colleagues are doing.
To recover damages from a veterinarian based on negligence, a client must prove four elements by a preponderance of the evidence, meaning it is more likely then not that the veterinarian erred:
Duty of Care. Clients must show that their veterinarians “owed” them a duty of care to provide veterinary services of a certain standard. This element is easy to prove, because courts almost always find that once a veterinarian has agreed to provide veterinary services, the veterinarian also has assumed the legal duty to take reasonable care in providing such services. In our scenario, Dr. Steel clearly owed Mrs. Bridges a duty to take reasonable care in providing veterinary services to Martinique.
Breach of Standard of Care. A duty to provide services within the standard of care is breached when veterinarians fail to meet the standard of care as established by the veterinary profession, that is, when they fail to act with the level of skill and learning commonly possessed by members of the profession in good standing. Mrs. Bridges probably will be able to prove breach of duty if her attorney can show that veterinarians routinely remove ovaries when spaying iguanas. Conversely, Dr. Steel will attempt to establish that he did not breach his duty of care, by showing that most general practitioners do not remove the ovaries and the patients do just fine. It is at this stage that expert witnesses are hired to testify as to what is the standard in the case at issue.
Proximate Cause. Clients must then prove that the veterinarian’s failure to provide services within the standard of care “proximately” or “closely” caused the harm suffered by the clients. If the harm suffered by the client is not a result of the veterinarian’s actions or omissions, it would be unfair to hold the veterinarian responsible. In our case, it is clear that Martinique’s death was caused by Dr. Steel’s initially performing the incorrect surgical procedure. Suppose, however, that Mrs. Bridges is suing Dr. Steel because Martinique died of renal failure a month after spay procedure. It will be a lot harder to prove that Martinique’s death resulted from anything Dr. Steel did or failed to do during the procedure.
Damages. Even after they have proved negligence, clients also must establish that they suffered harm resulting from such negligence. Since animals are considered as property under the law and most state courts do not recognize loss of companionship, this harm is usually in the form of an economic loss. As a result veterinary malpractice awards are usually much lower than in human malpractice cases and clients usually only recover the fair market value of the animal, costs incurred for veterinary care, and loss of income or profits in cases where the use of the animal is lost. However, we are seeing more and more states entertain the possibility of awarding non-economic damages and this is likely to increase the scrutiny with which standards of care are evaluated as well as the number of lawsuits filed against veterinarians.
Responding to Client Complaints
Veterinarians often can avoid receiving letters from clients’ attorneys and state boards by addressing client complaints long before client dissatisfaction leads to legal recourse. Clients often resort to litigation and or state board action when they believe their veterinarian either acted negligently or failed to respond appropriately to their concerns. When faced with a client complaint, veterinarians should consider the following:
- Listen to the client.
- Clients who have complaints are often angry and need the opportunity to “vent”.
- Veterinarians should show their clients that they are taking the matter seriously by listening carefully to what their clients have to say and taking notes of the conversation.
- Do not interrupt the clients since this will only anger them further and likely interfere with a clear understanding of the facts.
- Remain calm and objective.
- Avoid becoming defensive and emotional, since this may inadvertently reinforce the client’s belief that the veterinarian acted inappropriately with respect to the care of the client’s pet.
- A client’s criticism of a veterinarian’s actions, even when fully justified, does not necessarily mean that any negligence occurred. Veterinary medicine is an imperfect science and veterinarians are not omnipotent.
- Communicate, communicate, communicate.
- Many lawsuits are filed because veterinarians fail to adequately communicate with their clients. Often the client does not fully understand the diagnosis or proposed treatment and has unrealistic expectations as to the veterinarian’s services and the respective outcome.
- Veterinarians can enhance communication and reduce potential misunderstandings by 1) obtaining informed consents, 2) providing fee estimates, 3) encouraging questions, and 4) providing handouts explaining the contemplated services.
- Veterinarians should use “plain English” when communicating to clients since medical jargon may not only confuse clients but also intimidate them, making them reluctant to ask important questions.
- Show sympathy and concern.
- Clients whose pets have died are often emotionally distraught and under certain circumstances may seek to blame someone, sometimes their veterinarian, for their pet’s death. Veterinarians who are compassionate and attempt to comfort their clients are more likely to diffuse their client’s perception that the veterinarian should be held accountable for their pets death.
- Veterinarians should not hesitate to recommend grief counseling for clients who appear to have difficulty coping with the loss of their pet. Several veterinary schools have such hotlines, including, the University of California at Davis, University of Florida and Colorado State University.
- Coach the staff.
- Staff members can help diffuse client complaints and should be coached in what to do and say, if anything, when a client complains.
- The staff should remain professional at all times and avoid “offensive – defensive” discussions with clients who may be less intimidated by staff members and therefore more hostile to the staff as compared to the veterinarian.
- Do not admit fault or offer a settlement.
- Veterinarians should avoid making apologetic statements or excuses and should not admit fault, since this would compromise their case in the event a lawsuit was later filed. Veterinarians with only a few years of experience are more likely to feel guilty and accountable for bad outcomes, even though there was no negligence. Remember that “feeling guilty” is NOT the same thing as “being guilty.”
- Veterinarians should not offer to settle a malpractice charge or agree to any settlement offered by the client without first contacting their insurance carrier and attorney since it may be interpreted as an admission of fault, thereby prejudicing their case. Under certain circumstances it may be appropriate to reduce the client’s bill in an attempt to amicably and expeditiously resolve a dispute, but without admitting liability.
Avoiding Client Complaints
Just as an ounce of prevention is worth a pound of cure, the best practice to avoid being dragged into a lawsuit or state board investigation is to take measures to avoid client complaints. Even if successful, Dr. Steel will spend a lot of time, effort and money, defending himself in court and before the state board. In retrospect, it would have been far less costly and burdensome if Dr. Steel had informed Mrs. Bridges that he had limited experience with reptiles and Martinique should be referred to an exotic veterinarian with expertise in treating reptiles—at a minimum Dr. Steel should have done his research before performing surgery.
Veterinarians will save themselves a lot of grief if they periodically evaluate their practices to identify areas where preventive measures and procedures will help avoid complaints before they start. Additionally, veterinarians should regularly consult with the staff, their colleagues and perhaps even their insurance carrier to ensure that they are aware of the latest preventive measures adopted by other practitioners. Keeping abreast of developments in the legal liability field should be an integral part of any veterinarian’s continuing professional education. Because people are people, there is no way to prevent client complaints entirely. But in this area like many others, ignorance is dangerous and a preventive attitude is the best approach.
Being accused of malpractice can be a disconcerting experience for any veterinarian, but especially for associates who have been in practice for only a few years. These allegations can come in the form of a civil law suit or state board action and require veterinarians’ immediate attention so as not to compromise their defense. Preparing a defense against such allegations is facilitated by having knowledge of the law of negligence and an understanding of the adjudicatory process. Nonetheless, the best defense lies in addressing client complaints when they first arise by using honed listening and communication skills, keeping abreast of the standard of care within the industry and adopting preventative measures.
 The T.J. Hooper [60 F.2d 737 (2d Cir. 1932)]
Wrongful termination occurs whenever you fire an employee for reasons that are illegal and/or against your practice’s policies.
Illegal firings include those that involve discrimination, whether because of race, gender, citizenship status or other class protection. If evidence exists for discriminatory terminations by an employer, this can lead to a charge by the Equal Employment Opportunity Commission (EEOC) as well as to private lawsuits by affected employees. It is illegal to fire an employee as retaliation, whether it’s because he or she acted as a whistleblower or otherwise reported workplace activities or filed a workers’ compensation claim. You cannot fire someone because he or she refused to follow through on instructions that would require the employee to perform an illegal act or because an employee discussed labor issues with co-workers. It is also illegal to fire someone because of his or her medical history.
Dismissals that take place in ways that run counter to practice policies are also wrongful and include those where appropriate warnings were not given to the employee before termination took place, as just one example. Or, if your employee had signed an employment contract that stated terminations could only be “for cause” and you treated that employee as if he or she was an “at-will” employee, one that could be fired for any legal reason, that is considered wrongful termination.
Yet another wrongful termination category is one that isn’t often discussed but should be: that of constructive dismissal.
Constructive dismissal (or “constructive discharge” or “constructive termination”) occurs when an employer makes working in the practice so unpleasant that conditions become intolerable – and so the employee quits. The concept of constructive dismissal is included in wrongful termination laws in most states. And, in those states, whenever an employee resigns because of genuinely intolerable work conditions, that resignation can be legally overlooked because the employer-employee relationship was in fact severed because of the employer’s actions. Legally, this resignation can therefore be considered a firing, which opens the practice up to a lawsuit for wrongful dismissal.
If a former employee who resigned later claims that he or she did so because of a workplace environment that falls under the umbrella of constructive dismissal, that ex-employee will need to prove that certain conditions existed. These conditions are not uniformly defined from state to state, although they are reasonably similar. Typically, the ex-employee must demonstrate how the practice environment was toxic enough that resigning was something that a reasonable person would do. Being able to prove illegal treatment (such as sexual harassment) or working conditions (such as safety violations) is typically part of the process.
Another typical requirement is that the practice owner or employer knew of these intolerable working conditions and/or wanted to cause the employee to resign. Typically, one isolated act is not enough to convince the courts that a case of constructive dismissal exists. Instead, the former employee must typically show how a pattern of an extraordinarily negative environment at the practice existed for him or her. There can be exceptions, however, such as when an employer becomes physically aggressive or even violent towards the employee.
Note that it is also not enough for an employee to simply state that he or she felt the working environment could no longer be tolerated. The court will instead determine how a reasonable person could be expected to act in the circumstances.
Proactive Actions to Take
As the owner and/or employer of a veterinary practice, what should you do? Starting with the most obvious, do not engage in any sort of behavior that could be construed as actions that could make charges of constructive dismissal appear reasonable to a court. And, although you are not required to provide a stress-free working environment, you are required to ensure that a reasonable environment exists.
Carefully observe what takes place at your practice and address any inappropriate behaviors. And, if an employee comes to you with complaints of inappropriate behaviors, take them seriously, investigate and take corrective actions.
Wrongful Terminations Lawsuits at Veterinary Practices
In 2012, a veterinarian was terminated from her part-time position at the East Baton Rouge Parish Animal Control and Rescue Center; the veterinarian – Amy Cangelosi – ultimately filed a lawsuit against the center, claiming wrongful termination for reporting illegal activity. Cangelosi stated that the newly hired shelter director screamed at her after she spoke out against non-veterinary staff performing euthanasia procedures, as well as when she protested an increase in animals being euthanized – unnecessarily so in Cangelosi’s opinion. She also said that, when she spoke out against measures being taken, she was told not to question the director and was even threatened with termination.
Cangelosi and other long-term employees ended up being fired or resigning over their opposition to shelter practices, which included dogs watching other dogs being euthanized and then placed in a pile, deceased animals being beheaded in front of living ones and so forth. One comment made by Cangelosi was that the director “tried to get rid of me by making it miserable,” making the situation a classic foundation for constructive dismissal.
A more recent case involved a housekeeper named Sonia Wescott who was employed by a veterinary clinic in Philadelphia. She worked at the practice for six years, leaving voluntarily when she moved. She was re-hired when she returned to the area but was fired less than a year later after taking a short medical leave of absence.
She had injured her arm at the practice and reported the injury to management. Two days later, she needed to go to the hospital because of cellulitis. She tried returned to work but was sent home when she was still not able to perform her duties. She began taking a medical leave of absence but was told that, if she did not return by a specified date, she would be terminated from employment.
Wescott said that the stated return date was when she needed to have a chest x-ray taken, adding she had a doctor’s note backing her up. She required three more days before returning to work, but she was fired rather than being permitted to add those three days to her medical leave period. She filed a lawsuit because she believed the firing was retaliatory.
Here’s the bottom line. Wrongful termination lawsuits can be costly to practices in time, money and practice reputation, even if the case is dismissed. When the practice loses the case, the effects can be even more devastating.
Losing a Constructive Dismissal Lawsuit
If a former employee successfully proves that he or she was forced to quit, you may be court ordered to pay your employee back wages and benefits as well as lost wages and benefits while your ex-employee looks for new employment. There may be compensatory damages awarded for mental distress suffered by the ex-employee – and, in especially significant cases, the former employee may also be awarded punitive damages. The best defense is to put solid policies into place, including but not limited to termination policies, and ensure they are followed. Cultivate an employee-friendly workplace culture that includes a follow-up process when someone resigns from your practice and consult an attorney before firing someone.
Originally Published in Today’s Veterinary Business, December 2017
Recruiting, training and retaining quality employees is an ongoing challenge for veterinary practices of all sizes. Successfully doing so, though, is crucial if a practice is to thrive.
Team members involved in human resources should know how to address the three key issues below. Let’s look at the issues, questions to consider and methods of dealing with the challenges.
The Millennial Age
As baby boomers retire and Generation X ages, increasing numbers of millennials are entering the workforce. Expectations have been high for this generation, known as ambitious high achievers, but their transition into the workforce hasn’t necessarily been smooth. Intergenerational misunderstandings and conflicts waste millennial potential.
It’s important to note that a large percentage of millennials were raised by parents who packed their kids’ schedules with music lessons, sports practices and more. Many parents approached teachers and coaches if they felt their child did not receive a fair grade or wasn’t getting enough playing time.
Because of this helicopter parenting, some millennials are not as accustomed to asking for what they want and need, as previous generations were, which helps to explain why 93 percent of millennials left their last jobs and changed roles without first approaching their supervisor.
How can the lines of communication be opened between generations? How can the energy and talent of millennials be effectively harnessed in your practice?
- Work-life balance. According to one study, 57 percent of millennials say that work-life balance, along with personal well-being, is very important. A lack of flexibility was one of the main reasons millennials quit a job. How can you incorporate flexibility into your practice?
- Family oriented: Almost 40 percent of the millennial generation is so unhappy with the dearth of paid parental leave that they are willing to move to another country to obtain the benefit. How can you address the concern?
- Team oriented: Why does team-based work appeal to millennials? One, they find the work more pleasurable, and two, some prefer to avoid risk. Accommodating this preference would be beneficial to your practice, as these workers tend to contribute their best efforts when working in collaboration with others. They enjoy tackling challenges and don’t like to be bored. How can you harness this positive energy?
- Externally motivated: Many millennials are motivated by personal achievement and they appreciate participating in cross-functional situations where their expertise is merged with the skills of others to achieve common goals. They are accustomed to frequent feedback, so if you want to boost their potential in the practice, be transparent about your expectations and provide the desired feedback, including but not limited to regular performance reviews. Also, give praise and recognition when deserved, and create opportunities for promotions.
- Open communication: These channels are important to millennials. Despite being well connected via technology, they appreciate face-to-face time.
U.S. drug use and abuse negatively impacts the workplace. Heroin use is rising in many demographics and in both genders. Prescription opioids are problematic, too. More than two-dozen states and the District of Columbia have legalized marijuana, at least medically and sometimes recreationally.
Alcohol and drug abuse cost U.S. businesses an estimated $81 billion a year through lost productivity, according to one report. Substance abusers are absent 10 times as much as non-abusers and are late three times as much, studies show. Moreover, abusers use medical benefits 300 percent more often than non-abusers.
Veterinary practices face an additional challenge: a drug cabinet full of potentially addictive drugs, both controlled and non-controlled.
Drug testing is an option to address this situation in your workplace. What should your practice do? Steps include:
- Become aware of your state’s laws on drug testing.
- Create a formal, written drug abuse policy that addresses why the policy was established, what you expect from employees and what the consequences will be if the policy is violated.
- Set the parameters of the drug testing policy, including whom you will test, when you will test, for which reasons you will test and the logistics of the testing procedures.
- Determine how to address potential problems with drug testing. These include employee morale issues and resentment; claims that abuse-prevention programs are sufficient without testing; the financial expense; and legal challenges that may arise from the testing protocol.
Paid Time Off
Policies governing paid sick leave were left to individual companies before 2011, but then Connecticut mandated paid leave for service workers. Since then, Oregon, Massachusetts, California and Vermont, plus the District of Columbia and Puerto Rico, have passed paid sick-leave laws. Arizona joined the list last summer, and Washington State will be added in January 2018. Some counties and cities mandate paid sick leave for people working within their boundaries.
In general, states that have passed sick-leave laws require employers to provide an hour of paid sick time for every 30 hours worked, with 40 hours of leave annually often the minimum. This time typically can be used for family care as well.
To ensure compliance:
- Know your state’s laws and be aware of pending legislation.
- If paid sick leave is not required in your state, double-check county and city laws.
- Review your practice’s policies.
- Determine what modifications you should make. Perhaps create a policy from scratch if the necessary changes are significant.
- Update your employee handbook and redistribute it.
Effective Jan. 1, 2018, New York is mandating paid family leave for all employees as part of a worker-funded initiative. Payroll deductions start at 70 cents a week and rise to $1.40. This means that any employee covered by the state’s temporary disability insurance law who has, for 26 weeks or more, worked full time will be eligible for paid family leave. This also applies if someone has worked part time for a covered employer for 175 days.
All private employers must participate, and public employers have the option to do so.
Click link to see article on Today’s Veterinary Business http://todaysveterinarybusiness.com/3-h-r-challenges-can/
When it’s time to create your paid time off (PTO) policy, it’s important to answer the five Ws and the H: who, what, when, where, why and how. Focusing first on the “why,” note that, in the actual policies, you don’t typically share why policies are created in the ways they are, but you should definitely consider why you are creating each policy as they are formulated. Annually, when you review the policies, consider why updates should (or should not) be made.
Who will each policy apply to? How will they differ for different people? Some practices, for example, might offer 80 hours of paid vacation hours per year to full-time employees, while part-time employees working 20 hours per week would receive 40 hours, and so forth
What types of PTO will you offer? Vacation time? Sick time? Personal time? Some practices lump all the hours together as PTO because it’s easier, administratively speaking, to track the total number of days (or hours) someone has available rather than breaking it up into multiple categories. The advantage of breaking it up: you can limit vacation time, for example, or the number of days someone can call off for personal time.
What can employees do with unused days at the end of the year? Carry them over to the next year? If not, will that PTO simply expire or can employees ask to be paid for those unused days?
When can employees use the PTO? Making it all available at the beginning of the year is easier but some employees might use all the time in Q1 and quit, so perhaps half can be available in Q1/2; the other half in Q3/4. When can employees start to use PTO? Is there a waiting period? If so, the waiting period for practices is typically 30 to 180 days. When will the amount of available PTO increase for employees? After they’ve worked at the practice for three years? Five? By how much will it increase?
Where should employees submit their requests for PTO? In a designated place on the company’s internal website? In the mailbox of the human resource director?
How much notice will you require when someone requests time off? This ranges from one to six weeks in most practices, depending upon the types of PTO offered. Do you allow any last-minute requests (outside of sick days which naturally are last minute)? If so, what?
Originally posted in Today’s Veterinary Business, February 2018
Sexual harassment in the workplace must be dealt with promptly, fairly and firmly.
The #MeToo movement started last fall with claims of sexual harassment and rape against movie producer Harvey Weinstein. Before long, dark shadows were cast over other powerful men — from entertainment personalities Matt Lauer, Kevin Spacey, Russell Simmons and James Franco to politicians Al Franken and Roy Moore.
Although any accusation typically gets more publicity when a celebrity is involved, sexual misconduct occurs in all walks of life. What will you do — and should you do — as a veterinary practice owner or manager if an employee lodges harassment claims? What if the employee joins the #MeToo movement and goes onto social media to name names at your hospital?
If your team has a sexual harasser, your practice may be one complaint away from a disaster. How should your practice respond to the multilayered issue of sexual harassment? Do you know how to respond to complaints and proactively protect your practice?
Knowledge Is Power
First, take a good, hard look at your hospital’s sexual harassment training program and be honest with yourself. What is the quality of the program and how much effort do you put into it? If the program isn’t as well thought out and implemented as it could be and should be, you’re not alone, but improving it must be a priority. The training must pay more than lip service to the issue and must not be only a way to limit your liability if or when a complaint occurs.
Your program and policies must make a stand for respect and equality in the workplace, and you must amplify that by how you train, by how you communicate and by how you serve as a role model in your practice.
If you don’t have an anti-harassment training program, you need to create one now. It must be a top priority. You need to carefully craft harassment and sexual misconduct policies and procedures and share them with all your employees. Consider role-playing sexual harassment scenarios to give your team the opportunity to demonstrate and discuss the true impact of sexual harassment. If you don’t know where to start, consider hiring a practice consultant or human resources expert to construct a plan and conduct in-clinic training.
Your policies and procedures should provide multiple ways for an employee to report acts of harassment. If the only official avenue is for someone to go to his or her direct supervisor, how does it help if the supervisor is the harasser? This scenario, unfortunately, does happen.
Also have a plan for how you will follow through on complaints, and don’t rule out hiring outside legal counsel if appropriate. Once the policies and procedures are finalized, add them to the employee manual and go over them with the entire team. Review the policies annually, or more often if changes are made. Specific policies and procedures may vary by practice, but the bottom line in any document must be that sexual harassment will not be tolerated. It will be investigated promptly and addressed decisively.
Responding to Complaints
The U.S. Equal Employment Opportunity Commission requires prompt and proportionate corrective action whenever harassment is found to have taken place, with workplaces having both a legal and ethical responsibility to appropriately address complaints.
However, this does not mean that managers should assume the accused is guilty before an investigation has even started. Nor should assumptions be made based on gender — for example, assuming that men are the harassers and women are the victims. These approaches, in fact, are among the worst ways to respond. In today’s emotionally heated environment of almost daily news reports of sexual harassment, you must be fair to all parties and never punish a person based solely on an accusation or because of preconceived gender roles.
Step one is to take every complaint seriously and not rush to judgment. After you receive a complaint, promptly follow up and investigate thoroughly. Remember that anyone doing the investigating must remain fair and objective. Listen carefully to the complainant and assure the employee that retaliation for the complaint will not be permitted. Tell the complainant that if retaliation occurs or if harassment continues, you need to know about it right away and will address the behavior.
Document all discussions carefully, including the dates, times and witnesses to relevant events. When you inform the accused of the complaint, assure him or her that a fair and impartial investigation will take place and that guilt is not assumed.
Also, communicate regularly with the parties so they don’t feel ignored and explain that a rushed investigation serves no one well.
Once you’ve collected as much information as possible, use discernment in making the best decision you can about the complaint. Consult with an attorney to make sure you are looking at the situation appropriately. If the attorney has concerns about the investigation or the conclusions, take a good second look. You can move forward once the attorney supports your decision and reasoning.
Document all follow-up steps — from training to discipline — and keep the case files separate from regular personnel files.
Always Be Aware
Managers would be well-served to routinely monitor interaction among co-workers rather than wait for a complaint to be filed. Doing this might prevent less serious behaviors from expanding into full-blown misconduct. Keep an open-door policy as well so an employee feels safe sharing problems. If these conversations alert you to a sexual harassment situation — or even if you hear workplace rumors — they must be investigated.
Here are three additional steps to take:
- Review your employment practices liability insurance policy to see if legal costs associated with harassment are included. Determine if you need more coverage.
- Remain alert to sexual harassment issues and related legal cases, including those happening in other professions.
- Each year, review your sexual harassment policies and procedures, adjust them as needed, and inform all employees about the changes.
Finally, what will your practice do if a team member joins the #MeToo movement and uses social media to out your practice or an employee? Don’t wait for this possibility to become a reality. Instead, be proactive and develop a plan to address the situation if someone connected with your practice goes public with a complaint. Address both the legal and public relations concerns and get input from your attorney and other relevant professionals.
Is your practice prepared? Even if your hospital never gets entangled in the #MeToo movement, ignoring it is a problem. Instead, acknowledge the campaign and explicitly tell your employees that you agree with the fight against sexism both in the workplace and away from it. Work with your managers so they are prepared to foster an environment in which everyone can be safe from harassment.
Train and support your managers so they know how to handle a situation in which they personally observe inappropriate behaviors. Empower your team to handle harassment claims by providing them with all the policies, procedures and resources they might need, and be prepared to back them up all the way.
Originally posted in Today’s Veterinary Business http://todaysveterinarybusiness.com/how-metoo-affects-you-too/
“You know when a veterinary practice is toxic. You can almost smell it, that tang of adrenaline from spiking anger. You feel it. Your stomach sinks when you walk in the door and you sense the tension hanging in the air. Worse yet? You’re fully aware that the toxicity can lead to bad medical decisions resulting from spite or exhaustion or vindictiveness. The fantasies run through your head when you think about quitting – or finally getting up the courage to fire the bad apple that’s ruining the bunch. It all feels like a sickly gas floating through every client interaction, every treatment area procedure and every breakroom conversation.”
The article “Toxic Teams,” published in dvm360.com in February 2017, bluntly lays out what a toxic veterinary practice can feel like. Written by Rachael Zimlich, a registered nurse and journalist, the article also shares the dire potential consequences that can occur if a toxic environment is not addressed: bad medical decisions arising from spite, exhaustion or vindictiveness.
The article is also chock-full of responses to questions about the effects of toxicity in the veterinary workplace. They include the following results:
- 93% of people surveyed agreed or strongly agreed that communication issues can affect patient care
- 95% of people surveyed agreed or strongly agreed that communication issues can affect client care
- 79% of people surveyed agreed or strongly agreed that team conflict can affect patient care
- 90% of people surveyed agreed or strongly agreed that team conflict can affect client care
- 78% of people surveyed agreed or strongly agreed that communication issues can change decisions about which doctors and team members see particular cases
- 78% of people agreed or strongly agreed that communication issues make it difficult to agree to medical protocols
- 76% of people agreed or strongly agreed that team conflict can change decisions about which doctors and team members see particular cases
- 68% of people agreed or strongly agreed that team conflicts make it difficult to agree to medical protocols
So, how can your practice fight back against a toxic team environment? Here are six steps to take.
#1 Sliding Scale of Toxicity: Where Are You?
Practices fall along an entire spectrum of toxicity. If you’re one of the lucky ones, your team isn’t toxic, but you realize how you need to proactively keep it that way. If that’s the case, create policies that clearly define how communication should take place, which behaviors are acceptable and which ones aren’t, and the like. Get input from the various teams in your practice and, when the policy is formalized, add it to your employee handbook, hold meetings to discuss the new policy and review it annually, especially noting any changes.
If you recognize that your team already has a level of toxicity, go on to step two.
#2 Define What Behaviors Are Toxic
No two practices are alike, but common signs of toxicity include gossiping and bullying; staff feeling as though expectations are unclear and/or workloads are unreasonable; a management team that dictates what everyone should do without considering team feedback; and many more. Any one of these is a reason for concern and, if you recognize multiple toxic behaviors, the need for a solution becomes even more urgent.
#3 Model Appropriate Behaviors
Do as I say, not as I do. Managers and owners seldom say that statement out loud, but that message can easily be conveyed without ever being specifically articulated – and it is a recipe for disaster. If you want your team to communicate clearly and professionally, then that’s exactly what the managers and owners must do. If it’s important that team members follow specific policies and procedures, these need to be clearly provided – verbally and in writing – and the actions of managers and owners should not run contrary to them.
If you laugh about difficult clients after they leave, what message is that sending to your team? If you aren’t accountable to your team, how likely is it that they will ultimately be accountable to you? The actions of owners and managers must set the bar with high standards.
#4 Listen Carefully and Ask for Solutions
To get to the bottom of what’s making your practice toxic, you’ll need to talk to team members about their experiences, both good and bad – and you’ll need to carefully listen to what they tell you. You can use multiple formats to listen, including team meetings, one-on-one conversations, surveys where people respond anonymously and the like.
Don’t be afraid to ask your team to come up with solutions to identified problems. You are not obligated to use them, but you will probably find that many of them are quite good – and, since they have come from team members, at least some members of your practice will automatically be invested in making them work. There is also nothing wrong with setting the expectation that employees are responsible for attempting to solve their own problems, but practice owners and managers must ensure that the workplace is free from discrimination, harassment and the like.
#5 Address Toxic People Directly
Although team meetings can be excellent vehicles to gather information, they aren’t the best forums to handle toxic behaviors of a select number of employees. Instead, you need to set up individual meetings with people you’ve identified as participating in undesirable behaviors and come up with customized behavioral modification plans. Begin by privately sharing what you have observed about inappropriate behaviors and get a response from the toxic employee. Ideally, that person wasn’t aware of the impact of his or her behaviors and will agree to modify them. Other times, the employee will need to go through the disciplinary procedures set up in your employee manual, up to and including termination.
It isn’t unusual for a practice owner or manager to be reluctant to fire someone, perhaps because this person is the best one in the practice for handling fearful animals, as just one example, or the one who understands your computer system inside and out. But, toxic is toxic and, if that person does not appropriately modify behaviors, your practice, your clients and your patients will continue to be harmed.
#6 Right Size Your Expectations
Sure, you’d like it if you could tell your team to stop being toxic – and then they did. In reality, though, progress is likely to be incremental. After you’ve identified toxic behaviors, and then created and shared policies about expected behaviors, be sure to reward improved behaviors. Focus on making the workplace a more positive and healthy one, and celebrate each step towards that important goal.