“One of our hygienists got a DUI… What do I do?!” You Ask—We Answer!

 

AADOM—Happy August!

We are back again to answer your toughest HR questions, and this month, you really gave us some good ones!

We answer most of your questions during these HR Tuesday segments. However, you send in a lot, which we love, so we will often answer the questions we can’t get to here on the What the Hell Just Happened?! Podcast with our CEO, Paul Edwards.

Remember that your daily employee interactions likely involve state, federal, or local employment laws that you must consider when trying to find the best human way to solve the core problem. We will combine the two during our answers and help you devise some great resolutions.

Here are some of your best submissions this month:

1. One of my hygienists just got a DUI. Do I need to do anything? Could this have an effect on their daily responsibilities?
2. My employees text me after work hours, venting about the day and asking for advice on what to do. I’m the practice manager, so I think this might be a problem. How can I address this?
3. My employee called out on a day we had a continuing education event scheduled. It was a regularly scheduled work day for them, so I asked for a doctor’s note. The employee is fighting back and says I’m not allowed to ask since they were only absent one day. Is this true? Can I write them up for refusing to provide a note?

Let’s Get to the Answers:

Question: One of my hygienists just got a DUI. Do I need to do anything? Could this have an effect on their daily responsibilities?

The legal side of things: Unless the DUI happened during work hours, on work property, or the employee was under the influence at work, there’s nothing you’re legally required to do at this point in time. However, if any of those things do apply, we recommend reaching out to an HR expert.

Now for the human approach: No one wants to find themselves in this situation. Sometimes, your gut reaction can be to take some kind of proactive approach toward the employee. However, there is a better way to handle this that will keep you and your practice protected.

Since the DUI is not related to work and the employee is charged, not convicted, you need to refrain from addressing this from an HR perspective. If, in the future, the employee needs extra time off to go to court or attend court-ordered things like jail time or treatment, and those things impact your operations, that would be the time for you to start asking questions and making decisions as to whether you want to accommodate their requests.

For now, recognize that the employee may be very upset about what happened and be worrying about their job being in danger. It may be helpful for both of you to have a brief private conversation so you can acknowledge you know about the incident, but at this time, it’s not changing anything about their employment.

Make sure they know to, as always, request time off as soon as possible if they know they are going to need to miss work. If they have hearings, meetings with an attorney, or anything else related to this situation, you know they need to attend those but you also need to be able to plan for patient coverage.

Once the legal process unfolds, the employee may or may not receive a sentencing that impacts their daily responsibilities (jail time, attending rehab, community service, etc.). Moving forward, keep an open line of communication with the employee regarding this topic and document any conversation you have with them about it. We recommend using the HR Vault for this (it’s document storage and distribution software complimentary to AADOM members!).

Question: My employees text me after work hours, venting about the day and asking for advice on what to do. I’m the practice manager, so I think this might be a problem. How can I address this?

The legal side of things: The biggest cause for concern is that these discussions become time worked that needs to be tracked and paid if the employee, or yourself, is non-exempt. It’s one thing if it’s a one-off message, but if the conversation starts to go back and forth, the texts could violate wage and hour laws for non-exempt employees if they aren’t being paid for that time. This applies to you, as the recipient of the text messages, as well if you are non-exempt.

There’s also the risk of your employee inadvertently sharing protected health information when venting. HIPAA regulations still apply to communications that occur after work hours, and you certainly do not want PHI to exist on your employees’ personal devices.

Remember, AADOM members have access to complimentary HIPAA training for you and your team!

This blog provides some more insight into the potential legal issues with texting outside of work hours.

Now for the human approach: We recently surveyed our community (speaking of, have you joined yet? You will get HR Education sent to your inbox every week!) about group texts. Out of those who answered, 83.5% said their team has a group text on their cell phones. Clearly, it’s more important than ever to know how to set those digital boundaries outside of work!

It’s a good thing your employee feels comfortable talking to you about the issues they’re facing, but there’s a better way to have these discussions.

Try to encourage your employees to leave the workday behind them when they leave for the day. Both you and them should be able to get a break in the evening after work without continuing work discussions during your personal time.

Discussing things over text can also be difficult for so many reasons and is not the best way to talk something important through. If you’re getting text messages from an employee and it is not an emergency that needs immediate resolution, it’s usually best to let them know you will make time to speak to them the next day. That way, the fact that they have concerns is acknowledged, but you are still creating boundaries about how and when workplace issues will be handled.

We recommend taking a moment to speak to the employee the next time you’re in the office together and gently reminding them that workplace concerns should be addressed during work hours and not over text if it’s not an emergency. You should have some sort of concern reporting policy in place. If you’re a CEDR member, this policy can be found at the end of your handbook.

Approach this conversation gently. The employee isn’t in trouble for reaching out to you, but you want to address it now before their after-hours texts become the standard.

Question: My employee called out on a day we had a continuing education event scheduled. It was a regularly scheduled work day for them, so I asked for a doctor’s note. The employee is fighting back and says I’m not allowed to ask since they were only absent one day. Is this true? Can I write them up for refusing to provide a note?

The legal side of things: The employee might be right. The answer depends on whether your state has a sick leave law in place.

Many sick leave laws prohibit employers from asking for a doctor’s note until the employee has been absent for at least three days, sometimes longer. If a sick leave law applies and the employee has accrued sick time they elected to use, they’re protected and are more than likely not required to provide a doctor’s note.

What if no law applies?

Well, that’s when you refer to your employee handbook. Your attendance policy should clearly state when employees may be required to provide documentation for unscheduled absences. And, you should be applying this policy with consistency across all your employees. Picking and choosing who to use it on can open you up to some serious legal risks.

Want to find out more about the sick leave laws in your state? AADOM members have access to a complimentary HR consultation with our HR experts. Check it out here! 

Now for the human approach: You may be feeling extra frustration because you suspect the employee is not taking the CE event seriously and is just making up an excuse not to come in. If this is the case, be careful about making assumptions.

Consider what your attendance policy says, how you’ve handled similar situations in the past, what this employee’s attendance record and work performance is like, and the expectations you set around attending the CE class. These are the questions our HR advisors would ask you if you were working with us on this issue.

If your state laws and your policies allow it, you can ask for the doctor’s note. But also try to be reasonable here, and only do so if it is your normal practice.

Notably, it is generally recommended not to require a note for every single call-out, as it is often difficult to get a same-day doctor’s appointment to be seen for a short-term illness, and medical attention is not necessary for every instance that could result in a call-out. So that requirement can be inordinately burdensome for your team and result in them coming into work sick in lieu of having to find a doctor who can see them.

You can and should have the employee come up with a plan for how they will make up for the training they missed. This may involve watching an online training program, meeting with a team member who attended the training, or another alternative.

This is just one example of why it’s so important that you have an employee handbook in place and that you share it with your employees at the time of hire. Without it, it can be difficult to enforce specific rules because you don’t have a standard policy to point to. It also makes it harder to take adverse action if an employee is violating a policy.

If you’re looking for a compliant employee handbook or need guidance about which state laws apply to you, we can help! Contact us to learn more about the HR support services we provide.