State-Law Savvy: How to Find and Follow State Employment Laws

Employment laws have been created to protect workers from wrongdoing in the workplace, addressing issues such as the following:

  • minimum wage requirements
  • protection from discrimination
  • workplace safety
  • child labor laws
  • workers’ compensation

These laws have been constructed to protect both the employee and the employer. In the United States, the relationship between employer and employee is known as a “master-servant” situation because the employee is expected to perform specified duties under the auspices of the employer. Labor laws have been created to prevent employers from abusing their power. These laws continue to be created and modified with the changing times.

Two good examples of employment laws created to balance the master-servant relationship include the following:

  • Fair Labor Standards Act (FLSA)
  • Age Discrimination in Employment Act

They aren’t the only laws providing this balance, but are good examples of the kinds of laws created to help ensure that employers cannot discriminate against their employees or otherwise abuse their position. The goal is not to create laws that simply favor the employee over the employers, but to create a more balanced and equal relationship. For example, employers are protected in that if they don’t believe a person is capable of doing a particular job, they are not required to hire the person. They also do not have  to keep someone indefinitely who isn’t performing to a reasonably-established standard.

There are federal laws addressing each of these topics, and states also make their own laws, as well. States cannot create laws that contradict existing federal laws, and if no relevant state law exists, then the corresponding federal rule applies.

Next, we will address state laws in two different but equally important ways:

  • how to discover what the laws are in your state
  • how to best follow those state-specific laws

Finding State-Specific Employment Law Information

You can find answers to questions about employment law, in general, through the United States Department of Labor. There are also links to state-specific law information. Ways to contact this federal agency include:

U.S. Department of Labor
AGENCY NAME
OFFICE NUMBER

200 Constitution Ave NW
Washington, DC 20210

The U.S. Department of Labor may direct you to an agency in your own state to get the state-specific answers you need, so you will often find answers more quickly by going directly to your State Labor Office; you can find a comprehensive contact list here: https://www.dol.gov/whd/contacts/state_of.htm

Another way to find this information is to talk to an attorney well versed in your state’s employment laws. This is often the best way to understand how a particular law applies to your specific situation.

Following State-Specific Employment Laws

Step one to following any law, of course, is to thoroughly understand that law and its implications. You will also need to investigate how your specific situation fits into applicable laws.

Here’s just one example of an employment law that differs from state to state: final paycheck laws. Because the FLSA does not address this issue at all, you need to look to state laws to find out how and when you must issue a final paycheck to an employee leaving your practice. Does it matter, for example, whether the employee was fired or if he or she quit? Sometimes, yes. Sometimes, no. It depends upon the law in your state.

Regarding finally paychecks, four states currently have varying laws on this topic: Alabama, Florida, Georgia and Mississippi. In Missouri, no law exists about when you must give a final paycheck to an employee who quits, but a fired one must receive it immediately. In Ohio, no state law dictates when a fired employee gets his or her last paycheck, but one who quits must receive it by the first day of the month for wages earned in the first half of the prior month, or on the fifteenth of the month if wages were earned in the second half of the previous month.

So, by examining just one state employment law in six different states, it’s easy to see the wide variety inherent in today’s laws. When someone leaves your practice, how vacation time payout is handled is also subject to varying state laws. Some states have no laws whatsoever on the subject. Others say accrued vacation time must be paid out, while others state that it must be paid out if the employee agrees to certain conditions—and, for example, in Maryland, employers can create a written policy that states they don’t pay out for accrued vacation at all. If employees are notified of this policy when first hired, this policy can stand.

Here’s an example of one type of employment law that is covered by federal law, in which a state is allowed to offer more to employees, but not less: minimum wage laws. You can find information about each state’s laws at the U.S. Department of Labor’s site (https://www.dol.gov/whd/minwage/america.htm) via a color-coded map that indicates how that state’s laws compare to the federal standard. Hover your mouse over your state to see the current rate for you and click on your state to find more detailed information about applicable laws.

For example, in 2018, the federal wage law is $7.25. Click on Nevada in the map described above, and you can see that they have established a two-tiered system. If an employer doesn’t offer health insurance benefits, the minimum wage is $8.25, with premium pay required on days that exceed eight hours or weeks that exceed 40. However, if the employer does offer health insurance benefits and the employee accepts them, then the minimum wage is the same as the federal rate of $7.25.

Meanwhile in Missouri, they have established a minimum wage rate of $7.85, with no daily premium pay requirements, and premium pay is only required if an employee works more than 40 hours per week. Employees who work for a retail or service business with gross annual sales of less than half a million dollars per year, though, are not required to receive more than the federal minimum wage rate. And, if an employee works in a “seasonal amusement or recreation” business, premium pay is not required until “after 52 hours.”

In Arizona, the minimum wage is $10.50 per hour. In Oregon, it is $10.75, with premium pay after 40 hours – and, if someone works in “nonfarm canneries, driers, or packing plants and in mills, factories or manufacturing establishments (excluding sawmills, planning mills, shingle mills, and logging camps)”, premium pay is required after ten hours in a day.

Not all examples apply to veterinary practices, of course, and the point of these examples is to show how widely state laws can vary. So, it’s wise to fully use the resources available to you through government offices and websites and, when needed, through advice of employment attorneys. Laws can change, so make sure that your practice is state-savvy for this year’s laws.

Following State Laws: Vital for Practice Success

Because employment laws are created to help maintain a healthy balance between employer and employee, carefully following them helps you to create and/or maintain a healthy work environment for everyone in the practice. Conversely, by not following these laws, you’ll open your practice up to a significant risk for lawsuits.

 

Employee Personnel Files and Records

What types of employee records do you have to maintain?  How long do you have to retain copies of various employee records?  Are there certain documents you need to save longer than others?  Can you keep all employee records in one file?  Should medical doctor notes or I-9 employment eligibility documents be kept in the employee’s “personnel file”?  What about payroll and tax records?  How about correspondence and records generated during an internal investigation?  At what point can you start destroying records?   When and how must documents be destroyed?  Are there specific laws pertaining to document shredding?

The simple answers to all these questions are….. there are no simple answers.  These are some of the difficult questions facing Practice Owners and Practice Managers responsible for interpreting and ensuring proper compliance with the dozens of federal and state laws governing employee records retention.  Most of us realize it would be impossible to retain every employee record forever.  One would need to devote a separate building just to store these records.  While there is considerable debate about how long various employee records should be kept, employers should err on the side of retaining any employee records they think might be needed in future.  It is also advisable to establish a schedule for auditing your Practice’s record keeping, including employee files, as well as a consistent program for records destruction. However, be cautious that even with such a schedule in place, if a discrimination charge or lawsuit is filed against your practice, all records relevant to the charge must be kept until “final disposition” of the charge or lawsuit.  Examples of individual employee documents that may be needed in a lawsuit include:

  • Official Employee Folders
  • Application & hiring records
  • Promotion documents
  • Disciplinary records
  • Performance reviews
  • Training records
  • Payroll records
  • Medical records
  • Polices & procedures
  • Job descriptions
  • Employee grievance & complaint records
  • Job postings/advertisements
  • Supervisor’s notes & records

There are other records and documents pertaining to all employees in the practice that should also be retained, including:

  • Policies prohibiting discrimination & harassment
  • Employee Handbooks
  • Acknowledgements/Receipt of employee handbooks and policies
  • Training records (for all)
  • Decision-making documents

Why Retain Employee Documents

Several statues & regulations require employers to create and/or retain various types of employment records for varying periods of time.  It is interesting, and confusing, to note that requirements for retaining the same or similar records are often required under more than one law.  Unfortunately, the periods of time required to retain this information may vary from federal to state law or between one law and another.  This paradox merely adds to the confusion over how long to retain employee records.  Here is a listing of some of the laws that require employers to retain various employee records:

  • Equal Pay Act (EPA)
  • Fair Labor Standards Act (FLSA)
  • Title VII of the Equal Rights Act
  • Age Discrimination in Employment Act (ADEA)
  • Family Medical Leave Act (FMLA)
  • Employee Retirement & Securities Act (ERISA)
  • Occupational Safety & Health Act (OSHA)
  • Lilly Ledbetter Fair Pay Act (LLFPA)
  • Uniform Guidelines on Employee Selection Procedures (UGESP)
    Immigration
    Reform & Control Act (IRCA)
  • Federal Insurance Contribution Act (FICA)
  • Federal Unemployment Tax Act (FUTA)

Lilly Ledbetter Fair Pay Act

One piece of recent legislation has thrown a “monkey wrench” into figuring out how long to retain employee records.  The Lilly Ledbetter Fair Pay Act, passed by President Obama during his first few days in office, extends the window of opportunity for a current or former employee to bring suit against an employer for perceived discriminatory pay practices.  Lilly Ledbetter, a former Goodyear Tire & Rubber Company employee, filed a discrimination suit against her former employer based on her gender.  Specifically, Ms. Ledbetter claimed Goodyear lowered her performance reviews which resulted in smaller merit increases for years.  This case made it all the way to the US Supreme Court which upheld her claim, but limited the judgment award to discriminatory practices that occurred within the previous 180/300 days.  However, in light of the passage of the Act, employees are now allowed to file suit for discriminatory pay practices that were instituted years prior.  Thus, an employer may now need to produce employee records that go back for many, many years to refute the charge.  If no documentation is available, the practice may not be able to rebut claims or provide an adequate defense for its actions.  This will most likely result in the practice losing the claim and also having to be responsible for attorney’s fees & costs.  Further, some evidence may be excluded without the proper and legal supporting documentation.  Finally juries may think records that are not available would have only supported the claim made by the plaintiff.

What to Do

What does this new law mean for practices and their recordkeeping requirements?  In light of recent legislation, there is no longer a universal answer for how long to keep records.  Each practice should develop its own records retention strategy based upon its own culture, risk tolerance, and available resources.  Since the retention requirements of various laws overlap, employers should err on the side of retaining any employee records they think might be needed in future.  As a minimum, each practice should take the following steps:

  • Develop, examine &/or revise its record retention policies and stick to them; decide how long each piece of documentation should be kept, how it will be stored, and, ultimately, how it will be destroyed.
  • Establish separate files for employee records, as follows:
    • Official Employee Folder-one file for each employee
    • Individual Employee Medical Folder- one file for each employee
    • I-9 Folder-one file for current employees and one for terminated employees by year
    • Health & Safety Training Folder (OSHA)-one file for each employee
  • Review &/or update pay and performance management policies to ensure there are no indications of discrimination or unfair labor practices ensure electronic records policy is consistent w/hard copy records policy.
  • If you retain records electronically, ensure your electronic records policy is consistent with your hard copy records policy since electronic signatures can represent enforceable agreements if they clearly & explicitly deliver terms of agreement.
  • Train managers and supervisors on the new risks of unfair pay practices.
  • Conduct an annual audit of all employee records

Developing a Records Retention Schedule

A records retention schedule will help a practice ensure that it keeps the records it needs, for as long as they may be needed, and then destroys them when they’re no longer useful.  However, you have to know what you have and how long to keep it—legally and for your own business purposes—before you can establish an efficient records management system. That’s why it’s important to inventory your records and develop a schedule.  Here are some guidelines for establishing your own records retention schedule:

Records                                                                                                        # Yrs

Recom: all HR-related records                                                                       6

Any record to support pay diff: men vs women                                          3

Payroll records, incl comp p/week                                                               3

IRS tax-related payroll info                                                                              4

FMLA/USERRA                                                                                                  3 after term

I-9                                                                                                                          3 after DOH

Pension & welfare plan documents                                                               6

OSHA logs & summary of recordable injuries                                              5

Employee exposure to toxic substances, incl MSDS                                  30

Employee workers compensation claims                                                      duration of employment + 30

Resumes & applications                                                                                    1-2

Polygraph test results                                                                                        3

Remember, retaining employee records is something every employer is required to do.  What, how and for how long you save is dictated by law.  While developing and adhering to your records retention policies may be cumbersome, think of it as insurance for your practice.  Without having the proper records, you may become vulnerable to unfounded claims by former employees that could cost you considerable time and money.  That’s why a little effort along the way can save you lots of headaches in the future.

Employee Guidelines for Social Media Usage

As of October 2015, says Pew Research Center, 76% of adults in the United States who have access to the Internet use Facebook – and, with the abundance of smartphones, people are connected to the Internet with just a finger tap. This trend is unlikely to decrease – mobile phone usage OR social media participation – so it just makes good sense for veterinary practices to establish social media policies for their employees.

Important note: It also makes sense to consult with an attorney when creating your policy. This is an ever-changing social phenomenon and issues are not always clear-cut.

Social Media Policies

First, how do you define social media? You’re almost certainly considering platforms such as Facebook, Twitter, LinkedIn, Google Plus and the like to be social media. But, what about an employee’s personal blog? Comments he or she makes on someone else’s blog?

It’s important that your policy clearly outlines what’s permissible and what isn’t, but you should first share the following context:

Policies should state that the practice respects the rights of its employees to use social media as a method of self-expression and public conversation. State that the practice does not discriminate against employees who use social media to communicate personal interests and affiliations, or any other lawful purposes.

A 2012 memorandum by the Office of the General Counsel (OM 12-59) uses phrases like this in their sample policy:

  • “Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved.”
  • “Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow associates or otherwise adversely affects members, customers, suppliers, people who work on behalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinary action up to and including termination.”

Other sections in OM 12-59 encourage being honest, accurate and respectful. There is a focus on specifically prohibiting posts that include discriminating or harassing statements and, as far as prohibiting specific forms of content, types include:

  • Employer trade secrets/private and/or confidential information
  • Internal reports, processes and policies
  • Content where someone falsely claims to represent his or her employer

You will likely want to prohibit non-work-related social media posting while an employee is on the clock.

An Entrepreneur.com article by Arkady Bukh, a New York federal defense attorney, sums up social media policies this way: “Ultimately they [social media policies] should be about educating workers to use common sense when they use social media.”

Pros and Cons

As you craft your policy, keep in mind both the benefits and challenges associated with social media. On the plus side, social media can be used as a powerful marketing and branding tool. So, if your employees are perceived as likeable, friendly and trustworthy people on social media, then this can only benefit your practice when people are looking for a new veterinarian.

Spread the Word

It’s not enough to simply create a social media policy. You need to share this policy with all employees regularly, perhaps at an annual meeting where you review all company policies. Allow time for your staff to ask questions and gain clarity.

Recordkeeping: Employee Personnel Files and Records ©

Veterinary Business Advisors, Inc.

www.veterinarybusinessadvisors.com

The legal requirements for employer recordkeeping and the retention of employee files are not as straightforward as your average business owner would hope. In fact, sorting through the complex and varied requirements can be a daunting task. Here’s why: recordkeeping obligations stem from a number of federal and state laws that vary based on the industry, location, and number of employees. To confuse things even further, similar records are often required by more than one law with varying retention requirements.

To simplify the recordkeeping process, one must consider the four basic elements of legal requirements: create, maintain, protect, and destroy. Once these elements are understood in the context of recordkeeping, it will be easier to approach the process methodically.

Create:

Employers should begin by establishing policies and procedures for recordkeeping in their operations manual, ensuring that they comply with all state and federal employee privacy laws. The manual should define what files are created, how long they should be stored, and who has access to them.

An employee’s personnel file should contain a clear record of his or her employment history. It should provide insight into the individual’s work history, benefits history, prior work performance, training, career development, and other documented employment-related facts. The specific layout of these files is up to the employer as long as it fulfills applicable laws. The following records should be stored in each personnel file:

  • Employment application, offer letter, and resume
  • Job description, and handbook acknowledgements
  • Hiring, plus records of promotion/transfers, rates of pay, and other forms of compensation
  • Training/education documentation
  • Letters of recognition
  • Performance evaluations
  • Disciplinary and demotion notices
  • College transcripts, and background screening
  • Test documents used to make employment decision
  • Termination records, and exit interviews

As already mentioned, it is important to determine who has access to employee files. Some people will have access to the entire file, while others may only have limited access; some auditors, for example, may have access to some portions of each file but not to others. It is therefore recommended that you keep sub-files within employee files to distinguish what is permitted for certain people to review and what is not. The following records should be included in the sub-file:

  • Medical files; the Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA) require employers to keep all medical records separate and many states also have privacy laws to protect employees
  • Payroll files to maintain time keeping records, garnishments, and wage deductions
  • Equal Employment Opportunity information and investigations to minimize claims of discrimination
  • Immigration (I-9) forms to reduce the opportunity for an auditor to pursue and investigate information unrelated to the audit at hand
  • Safety training records from the Occupational Safety and Health Administration (OSHA) to protect the employer from an auditor pursuing and investigating information unrelated to the audit at hand

Maintain:

Records retention encompasses three components: what, how long, and how. These are dictated by federal and state laws. Nevertheless, there is considerable debate on record retention, so it is recommended that management err on the side of caution and base record retention upon risk tolerance and available resources. In other words, do as much as you can to minimize risk (without proper records, employers may be vulnerable to unfounded claims by former employees) with the resources available. The following list is the recommended retention period for each type of record:

Records                                                                                  Retention Period (Years)

  • All HR-related records 6
  • Any record to support gender pay difference 3
  • Payroll records 3
  • IRS tax-related payroll info             4
  • FMLA/USERRA 3 (after termination)
  • I-9             3 (after hire) OR

1 (after termination)

  • Pension & welfare plan documents             6
  • OSHA logs & summary of recordable injuries 5
  • Employee exposure to toxic substances, including MSDS 30
  • Employee workers compensation claims 30+
  • Resumes & applications 1-2
  • Polygraph test results             3

It is important to take the time to double check that personnel files and records are up to date and stored accurately as practice liability issues can result from improper employment record maintenance procedures. Fortunately, technological advances have greatly facilitated the maintenance of record keeping and personnel files, and records can now be stored on paper or in digital format. No matter which method you choose, the records must be maintained in a reasonable order, in a safe and accessible place. Digital recordkeeping systems must have controls in place to ensure the integrity, accuracy, authenticity, and reliability of the records. They also must be able to be converted into a readable paper copy, if necessary.

Protect:

Employment records are confidential. Security procedures should therefore be in compliance with all relevant current federal and state laws. Access must be limited to the human resource department and other personnel with a need to know. This will apply to personnel files, payroll, and medical records. Auditors and investigating agencies may also be allowed access to data, but only limited to the scope of the audit; employers should be aware that many states have laws regulating employees’ access to their personnel files.

Destroy:

Any time that records containing personal information need to be destroyed, acceptable methods include the following: shredding, erasing, or otherwise modifying personal information to make it unreadable or indecipherable. Employers should obtain a lawyer’s advice on establishing a destruction schedule to limit liability.

Conclusion

Recordkeeping of employee records may seem like a daunting task at first, but it can be managed by taking a systematic approach. Employers should begin by establishing a set of procedures that indicates the necessary documents and timeframe on storage. If there is a question about whether or not to retain a document, always err on the side of caution. The documents should be periodically audited to make sure they are up to date and stored accurately. Finally, the documents must be destroyed in an appropriate manner to ensure confidentiality.

Society for Human Resource Management (SHRM), 2013 SHRM Learning System, Module 2: Workforce Planning and Employment, Section 2-12, 2:282-292, 2013.

Shelter Veterinarians Are Not Sheltered From the Law ©

The American Society for the Prevention of Cruelty to Animals (ASPCA) National Outreach department estimates that there are anywhere from 4-6000 animal shelters in the United States. [1] While veterinarians who work in the animal shelter environment face the same legal issues as general practitioners who provide their services in private practice, some areas of the law are more likely to impact how shelter veterinarians practice veterinary medicine as compared to their general practitioner colleagues.  Working with shelters provides veterinarians with an opportunity to have a huge impact on the quality of life for these homeless animals. Veterinarians who choose to work or volunteer in shelters must be aware of the elements of the veterinary practice act and other legal requirements that apply to shelters, including OSHA, DEA, animal cruelty laws etc. Veterinarians should also seek indemnification for the services they provide. 

There is no federal regulation of animal shelters; only a few states have guidelines or laws governing how they operate. Therefore veterinarians may be the best advocates for assuring quality care is provided. The range of activities undertaken by shelters today, regardless of whether they have animal control contracts or not, almost demand involvement from veterinarians in order to be successful, yet in most cases there is no requirement for shelters to employ or consult with veterinarians in their day to day operations. 1  Shelter veterinarians often are employed by organizations formed for purposes that are generally ancillary to the private practice setting.  These purposes include “adopting out” animals to the public, educating owners about the responsibilities of pet ownership, investigating suspected rabies and animal bite cases, handling abandoned animals, providing behavior consultations to new pet owners, investigating animal cruelty cases and instituting animal population control programs, which, in each case, may give rise to challenging legal dilemmas for shelter facilities.  What follows are some of the areas more likely to generate legal concerns.

I. Pet Adoption

Prior to adopting out animals, shelters and shelter veterinarians should take reasonable measures to ensure that animals put up for adoption are free from zoonotic diseases[1] and behavioral problems which could potentially result in human injury.  Since medicine and animal behavior are imperfect sciences, shelters and their veterinarians cannot guarantee that adopted pets will not pose dangers to their human companions.  Although shelters do their best to assess animal disposition and adopt out animals that are free of parasitic diseases, shelters should be prepared to share the blame when children are bitten or lose their sight to ocular larval migrans.

In a New Haven case, a child lost his vision due to ocular toxocariasis and his parents sued the pet shop that had sold the child’s puppy.[2]  Although the pet shop ended up settling the case for $1.5 million, if the case had gone to trial the court would likely have addressed the issue of the pet shop’s alleged negligence in “failing to deworm the puppy, failing to have any deworming program in place, and failing to keep appropriate records.”[3] Although the defendant in this case was a pet shop, the analogy to the animal shelter context is clear. Shelters, like pet stores, are likely to be held responsible for protecting a naïve public from diagnosable, zoonotic diseases that are common in young and homeless animals.

Another liability issue for shelter veterinarians is assessing the vicious or dangerous nature of animals, especially dogs, before they are adopted out.  In a Tennessee case, a woman was killed by her neighbor’s two pit bulls that, several months earlier, her city animal shelter had determined were not “vicious.”[4]  Betty Lou Stidham lived next door to two pit bulls that had on numerous occasions’ bitten people.  When one of these dogs attacked her small dog so that her dog had to have a leg amputated, Ms Stidham filed a “vicious animal complaint” with the city shelter.  The shelter then impounded the dogs for evaluation and conducted a “vicious animal hearing.”  During that hearing, the shelter found that the dogs did not appear to have a “vicious nature” towards humans or animals and thus were not vicious.  However, the shelter did classify the dogs as “dangerous” because of their “capability to inflict serious injury,”[5] and thus ordered their owner to repair the fencing around the property and enroll the dogs in obedience classes.  The difference between the classifications “vicious” and “dangerous” in this case was that a classification as “vicious” would require the dogs to be impounded, while “dangerous” required only that certain steps be taken by the owner to minimize the dogs’ risk to others.

Adopting legally defensible policies and screening techniques reduces such risks by ensuring that adopting owners are able and willing to properly care for their new pet. (Appendix A) [6]   Shelters also may inquire as part of the assessment of prospective owners as to the type of environment to which a pet will be exposed.  Such inquiries reduce the possibility of pets being returned to the shelter because they did not “fit in” with the family.  Examples are a young, large, happy and rambunctious dog adopted into a family that lives in a high-rise apartment or a timid and potentially fearful cat adopted into a house full of active children.

II. Confidentiality of Medical Records

While veterinarians have a clear ethical obligation to maintain the confidentiality of their clients’ and patients’ medical records, [7] only a few states (namely Pennsylvania, New York, Georgia, Missouri, Kansas, Texas and Illinois) have laws, usually in the veterinary practice act, which require veterinarians to maintain client confidentiality.  This legal obligation does have exceptions however, and some states permit veterinarians to reveal confidential information for the purpose of protecting the public health or the health and welfare of the patient.

Shelter veterinarians face a difficult dilemma since, unlike their private practitioner colleagues, as many of the animals they treat are strays, either because the owners cannot be located or are unidentifiable.  Local and state laws dictate when the ownership of strays or abandoned animals is transferred to shelters, and once shelters are deemed to have ownership rights in the animals they shelter, no duty of confidentiality is owed to the former owner.  However, after the animal has been adopted, any medical information generated from the care of the animal would remain confidential in those states that impose a legal duty.

Therefore, in this hypothetical example, if Dr. Shelter treated a puppy, “Sammy” for tape worms after Mrs. Smith adopted the puppy and “Sammy” was later acquired by a second owner, Mr. Jack, then Mr. Jack would not be entitled to the information pertaining to “Sammy’s” treatment without Mrs. Smith’s authorization.  However, if Mr. Jack had been bitten by “Sammy”, Dr. Shelter would have to provide “Sammy’s” rabies vaccination history if Dr. Shelter is in a state that waives the duty of confidentiality for the purpose of protecting the public health.

III.  Malpractice Claims

Generally, shelter veterinarians are subject to the same malpractice claims as private practitioners and must therefore exercise the same standards of care as are expected of reasonably prudent veterinarians under similar circumstances.[8]  Examples of specific liabilities that most often concern shelter veterinarians include, the transmission of zoonotic diseases to humans, rabies exposure issues[9], anesthetic deaths of adopted animals scheduled to be neutered, and human injury due to the adoption of animals with behavioral problems.

It is advisable that within their agreements with the shelters at which they work, the veterinarian should be indemnified (ie, have their damages paid for by the shelter).  An example of indemnification language would be:

EmployER will ……. indemnify and hold harmless Employee, …… from and against each claim, damage, liability, loss and/or expense, …. whether based in tort, contract, equity, otherwise; including any claim before any court, agency, board or other body or entity having jurisdiction over veterinarians . . . based upon, resulting from, or by reason of the performance of Employee’s veterinary services in connection with her employment by Employer….

A release of liability from the shelter provides additional protection from the Employer suing the shelter veterinarian.   Such language would read as follows:

EmployER hereby irrevocably and completely forever:

            (i) releases, remise and discharges, . . . to irrevocably and completely forever release, remise and discharge Employee…from each Loss (as defined in Indemnification); and

            (ii) waives, … any and all rights, claims, remedies, privileges and benefits whatsoever … that is inconsistent with the foregoing. Employer hereby agrees both for itself and for each other Releasing Party that the foregoing release and waiver will remain in full force and effect regardless of any Agency’s determination

IV.   Expert Witness

Due to their involvement with the admittance and treatment of abused and neglected animals, shelter veterinarians are often asked to provide expert testimony in animal cruelty cases. While veterinarians receive no formal training on how to draft reports, answer interrogatories, or prepare for an appearance in court, serving as an expert witness is an important role which shelter veterinarians should be prepared to assume.   Without such experts to assist prosecutors in enforcing animal cruelty statutes, many perpetrators would be acquitted and left free to continue abusing animals.

In addition to the challenges of learning to be an effective expert witness[10], shelter veterinarians often are concerned with being sued for defaming[11] an individual charged with animal cruelty.  Unfortunately these suits do arise, but it should be comforting for veterinarians to know that such allegations are usually very difficult to prove and the truth is their best defense!  So as not to use personal funds to defend themselves against allegations of defamation, shelter veterinarians should not agree to be experts until they have determined who will pay their legal fees in the event they are sued.  Generally, shelters employing such veterinarians can agree to pay for the veterinarian’s defense or insurance can be purchased from a medical malpractice carrier, such as the AVMA-PLIT.  Moreover, some states protect veterinarians by forbidding claims brought against veterinarians on the basis of their involvement in such a case.  For example, Florida law states that veterinarians will not be held civilly or criminally liable for “decisions made or services rendered” under the state’s cruelty to animals statute.  It further clarifies this statement by asserting “[s]uch a veterinarian is, therefore…immune from a lawsuit for his or her part in an investigation of cruelty to animals.”[12]

V.  Permissible Acts of Shelter Staff

Since many shelters are set up as non-profit organizations and therefore are supported through generous but often limited donations, many are unable to hire “in-house” veterinarians.  As a result, many shelters consult or use the services of local private practitioners and have their non-veterinary personnel provide care to shelter animals. Private practitioners consulting or working with shelters must consider what forms of care they feel comfortable supervising or delegating to the shelter’s non-veterinary staff while abiding by the guidelines imposed by state law concerning acts that must solely be performed by veterinarians.  Generally, these include diagnosing, operating, treating or prescribing for any animal disease, pain or other physical condition.[13]

VI. Controlled Substances

As one of the main functions of shelters is to euthanize unadoptable animals, and few are “no-kill” facilities, shelters use large amounts of euthanasia solution, such as Pentobarbital.    The purchase and delivery of these “controlled substances ” is regulated by the Drug Enforcement Agency, a federal agency formed to guard against the misuse of dangerous substances, and in addition, each state has its own laws to regulate the use of these drugs.

Some state laws take into account the fact that euthanasia is an integral part of shelter life, and create unique provisions for the use of controlled substances specifically in shelters as opposed to the private practice setting.  State laws also may be more flexible regarding the purchase of euthanasia drugs for shelter use. Whereas state law generally only allows veterinarians to purchase controlled substances, some states permit animal shelters to register as “separate entities,” qualified to purchase euthanasia drugs even without a veterinarian on staff. Where a state requires individual practitioners to order and keep track of euthanasia solution in the shelter, thereby holding veterinarians solely responsible for the use of such drugs, it is essential for veterinarians to implement detailed guidelines for the staff to follow.

If an animal shelter is unable to obtain its own DEA license, it is dependent on veterinarians to purchase controlled substances for use at the shelter.  When a veterinarian decides to leave the shelter, both federal Drug Enforcement Agency regulations and state law must be followed in order to ensure the proper transfer of controlled substances from one licensed party to another.  The veterinarian who purchased these drugs will be held accountable and must take responsibility for them when he leaves.  If a new veterinarian is already at the shelter (or another responsible party with a DEA license), there should be a clear transfer of the controlled substances to that other party–the departing veterinarian should leave the responsible person with an inventory of all controlled substances purchased under the departing veterinarian’s DEA registration.

VII.  Rabies Vaccination Clinics

In order to reduce the public health risks associated with Rabies, municipalities frequently host “Rabies Clinics” which provide low cost vaccinations to cats and dogs owned by members of the community.  Such clinics are held at shelter facilities or public places such as fire houses and large parking lots.  Shelter veterinarians and private practitioners often donate their time and administer vaccines to what is frequently a large volume of dogs and cats.

Though there are a number of liability issues that arise in this context, there are certain requirements that are standard in most state laws governing vaccination clinics.  Firstly, though it is impossible to do a complete physical examination on each of these patients, most states, such as New York, require that the administering veterinarian perform physical exams to determine whether the pets are sufficiently healthy to tolerate the vaccinations.[14]  Additionally, owners must complete an information sheet before seeing the doctor, with such requisite information as their name, address, phone number, pet’s name, age, species, sex, color, breed and weight. (Appendix B) Thereafter, the veterinarian must fill in the rabies certificate for each patient, including the date of vaccination and the expiration date of the vaccine.

Some states, like Maine, have limited the liability by adopting laws that provide immunity for veterinarians working in the rabies clinic setting so that if injury or death to the animal does occur, the veterinarian is not held responsible.[15]  These provisions, however, are not universal and do not protect veterinarians in cases of gross negligence or willful misconduct, or where the veterinarian’s behavior falls below standards generally practiced by other veterinarians in like circumstances.[16]

VIII.   Liability for Euthanasia

Most shelters cannot find homes for all the animals they admit and are therefore permitted by state law to euthanize unadopted animals, including pets that have been lost by their owners.  Such laws are necessary to keep shelters functioning, as they experience a large influx of animals and need to maintain a continuous supply of cages. Before such animals can be euthanized, the laws of most states require that animals be held for a given waiting period to allow sufficient time for owners to locate their pets. This period, ranging anywhere from four to eight days, is often long enough for pets that can be identified, either with a collar, tattoo or microchip, to be reunited with their owners.

A negligence claim may arise when an animal is euthanized before the holding period is up and the owner comes in within the prescribed period to find the animal already gone.  Especially in today’s litigious climate, where the loss of a pet can invoke damages for loss of consortium and infliction of emotional distress, euthanizing an animal before the holding period has expired must be avoided.   Shelters can implement policies to minimize such risks by requiring their staff and veterinarians to check several times that an animal has been at the shelter for the requisite time period, before performing any euthanasia.

Conclusion

Shelter veterinarians have a unique relationship with the animals they treat and the owners that adopt these animals, and therefore they frequently are faced with legal dilemmas that they may not otherwise encounter as private practitioners.  There are, of course, many other legal issues that challenge shelters and shelter veterinarians on a daily basis, but this chapter is meant to guide shelter veterinarians in combination with their own common sense and caution; clearly there is not one answer that will apply to all situations.  Additionally, this chapter should not serve as legal advice, and shelter veterinarians should seek the direction of their state veterinary board as well as legal counsel, as needed, to determine the appropriate course of action in any particular situation.

References:

Shelter Medicine for Veterinarians and Staff.  Edited by Lila Miller and Stephen Zawistowski.  2004 Blackwell Publishing.  To order call 1-800-862-6657

[1]  Excerpts from the book, Shelter Medicine for Veterinarians and Staff.  Lila Miller and Ed  Zawistowski (Blackwell Publishing 2004)

[1].             Wilson, James F., et al., “Zoonotic Parasitic Diseases: A Legal And Medical Update.” Veterinary Forum, January 1996, pp. 40-46.

[2].              Id.

[3].              Id.

[4].              Chase v. City of Memphis, 1998 Tenn. LEXIS 435.

[5].              Id.

[6].             Wilson, J. F., Lacroix, C.A., Legal Consent Forms For Veterinary Practices. (Yardley: Priority Press Ltd., 1995)

[7].             Principles of Veterinary Medical Ethics of The American Veterinary Medical Association, Principle VII.  Medical Records, (1999 Revision)

[8].             Wilson, James F. , Professional Liability, Law and Ethics of the Veterinary Profession (Yardley: Priority Press Ltd., 1990), pp. 131-174.

[9].             “Public Veterinary Medicine: Public Health, Compendium of Animal Rabies Prevention and Control, 2000.”  Journal of the American Veterinary Medical Association, February 1, 2000 (Vol. 216, No. 3) pp. 338-343.

[10].          Wilson, James F. , The Veterinarian as an Expert WitnessLaw and Ethics of the Veterinary Profession. (Yardley: Priority Press Ltd., 1990), pp. 284-293.

[11].          Wilson, James F. , Libel and Slander,  Law and Ethics of the Veterinary Profession (Yardley: Priority Press Ltd., 1990), pp. 166-170.

[12].            Florida Statute § 828.12(3) (2001).

[13].            California Business and Professions Code § 4826 (b), (c), (d) (2001); New York Consolidated Laws, Education Law, Title 8, Article 135 § 6701.

[14].            New York Regulations, Veterinary Standards of Practice, NY Reg § 638.620.

[15].          Maine Revised Statutes, Title 7, Part 9, Chapter 720, § 39.17 (2001) (janus.state.me.us/legis/statutes/7/title7sec3917).

[16].            Texas Health and Safety Code § 826.047, (www.capitol.state.tx.us/); Pennsylvania Code § 455.9a(a).