The number one headache for most private practitioners is managing staff members.

To that end, Review asked for your toughest staff problems, and then asked me to answer them. So, as a lawyer, a practice consultant and a practice owner, here’s my best advice.

A Toxic Environment
Q. We recently moved to a new location. The new office is great. Everyone loves it—except one staff person appears to be allergic to something. She sneezes and coughs and frequently has to blow her nose. No one else is affected. It does not appear to be seasonal. She can control it if she takes OTC allergy meds. On rare occasions, it is so bad that she has been unable to work and has gone home early. We have put in a new AC unit and paid to have all the ducts cleaned, but it has not helped her. My question: How much more am I required to do for this employee? What more can I do? If she is the only one affected, how much of it is her responsibility?
—Dr. W.
Tampa, Fla.

A. You have several issues to think about when considering your obligation to employees.

First, find out if you are in an “employment at will” state. If so, that means you can let an employee go for any reason.

Second, consider the issue of “reasonable accommodation” for “disabled” employees. Reasonable accommodation means that an employer must make a reasonable effort (whether in cost, time, etc.) to address an employee’s disability (which may be permanent or temporary) to help the employee perform his or her responsibilities. This may entail allowing an individual to assume other office responsibilities in place of those performed in the past. Each case is unique and one size doesn’t fit all.

Third, what do you have written in your office policy manual?

Fourth, do you have a contract with this employee and what are your grounds for termination?

I’m assuming that this employee had no difficulty in the previous location, and this onset of allergy response is new and not improving. If she is able to control it with OTC allergy medications, then you may wish to simply offer to pay for those meds on the days she is working. (This should satisfy the “reasonable accommodation.”)

Of course, a better option is for her to get tested by an allergist and find out what specifically she is allergic to, and then try to mitigate the offensive allergen. You have already gone beyond what would be considered reasonable accommodation at this point with respect to the immediate environment.

The bottom line: How valuable is this employee to you? Does she have to work directly with your patients, or can she work in billing or another back-office setting where patient contact is minimal? You will ultimately lose patients if she is constantly sneezing, coughing and blowing her nose when she is with your patients; the other employees will also become more uncomfortable around her. Furthermore, you have the additional problem of germaphobic employees and patients who might mistake her allergic response for something contagious.

Try working with your valued employee—she most likely has already given this a lot of thought. If you remember that you are a team, you’ll be far more likely to succeed and avoid unnecessary costs and litigation. Sit down with her, one on one, and see if you can come to a solution. Perhaps offer to pay for the allergy testing and possibly the accompanying injections or medication.

If she is unwilling to make any effort to control the problem, you’ll find yourself in the position to either fire her (and pay unemployment) or to put up with it until you cannot stand it anymore, while potentially losing patients and other staff members in the meantime.

At this point, you’ve done pretty much everything you can and it is up to your employee to take responsibility for controlling the problem with OTC allergy medication. Be certain that you document all efforts and counseling that you have made to resolve this issue, as you are likely to end up in labor court if you contest her filing for unemployment.

Selling on the Sly
Q. I suspect—but am not sure—that one of my optical employees has sold frames and lenses “on the side” to her friends and/or family. However, she handles all the ordering and the billing, so she could easily hide these orders and sales from me. How can I legally confront her about this without making it an accusation? She has been a good employee. If I am wrong, I don’t want to put a dark cloud between us. But if I’m right, what is my legal recourse?
—Dr. B.
Birmingham, Ala.

A. Legally, unless you are able to document the theft, you will not be able to prosecute.

I would suggest a change in procedure. To avoid a perceived allegation of wrongdoing, you can couch it in neutral terms: you want to “expand her duties to other areas,” or you just attended a practice management seminar/consultation and this was a recommendation, etc. Your optical employee will continue to handle all the ordering but, effective immediately, no orders should go out without your immediate approval at the end of the business day (you can even do a daily order sheet—patient, method of payment, type of Rx, etc.).

Also, have your labs send all bills directly to you. (You can have bills sent to you on your personal computer only, not the office computer that is accessible by employees even if it is password protected). Make certain that the labs are under specific orders to only send the bills to you or your designee.

It is never a good idea to have one employee responsible for ordering and billing. All bills need to be reconciled on a daily, weekly or monthly basis. That means that every invoice needs to be matched with the end-of-month lab billing. You need to see all bills and you need to reconcile those bills (or another trusted employee needs to do this). Separate the tasks and specifically empower employees to handle each task independently.

The bottom line: Your financial tasks need to be divided up so that no single individual has access to everything. Furthermore, you need to run periodic security checks to ensure the safety of your office income and integrity.

An Rx for This Headache
Q. I have an employee who called in her prescription medicines into the pharmacy under a patient’s insurance because she (the employee) doesn’t yet have prescription coverage with our practice. (She’s a part-timer.) As the practice owner, will I come under scrutiny or even disciplinary action because of this employee’s actions? Should we pursue this matter, or can we legally ask the employee to resign if we do not pursue this matter? Should we contact the patient whose prescription coverage was used without knowledge and permission?
—Dr. M.
Philadelphia, Pa.

A. Well, you have a serious problem. Fire her now. If you do not fire her, you will be setting a poor example for everyone else in the office and encourage dishonesty, fraud and theft.

Any way you look at it, this is fraud. As the employer, you are responsible for the actions or inactions of your employees while acting within the scope of your office. (Law books refer to this as the theory of respondeat superior, which is Latin for “Let the master answer.”)

This is a punishable offense and she can be prosecuted. And if you know about it and do nothing, then that liability may extend to you. You stand to lose a lot, including being on third-party panels, charges of fraud, loss of licensure, etc. So, is she worth it?

It makes no difference whether she works full time, part time, is new, experienced, etc. She has probably done this before and, unless you nip it in the bud, she likely won’t be deterred from similar transgressions in the future.

I would pursue it, absolutely. To allow her to resign and not press charges is not only wrong, but it now makes you complicit in her illegal and fraudulent actions.

Notify the police department, notify the insurance company, notify the pharmacy and notify the patient. Do not let the employee know in advance and do not discuss this with anyone prior to taking action. Once you have notified the police and the insurance company, fire her immediately.

When you are faced with her claim for unemployment, you now have the documentation to support your decision.

Don’t Discuss Politics
Q. What constitutes a “hostile work environment”? We have a long-standing and loyal employee (21 years) who now goes on long tirades and enters into heated arguments about politics with other staff members. (So far, the employee hasn’t engaged patients in these debates, but it seems like it’s only a matter of time.) I’ve personally requested that the employee cease these actions, and each time he has apologized and promised to stop. But it keeps happening, and it’s making the other employees unhappy. We have an open and lively work “culture” in our practice, so in some way I feel responsible that this environment has encouraged his behavior.
—Dr. S.
San Francisco, Calif.

A. A hostile work environment is a workplace where an employee is subject to harassment. This harassment may be based on race, disability, religion, gender, national origin, or be sexual in nature. Both federal and state laws prohibit this.

California laws use the following standard to determine whether harassment would affect an employee’s work performance: “Would the harassment have interfered with a reasonable employee’s work performance and would it affect the psychological well-being of a reasonable employee?” Most states have a similar standard.

So, the bottom line is whether the work environment is hostile to that employee, to other employees, to your patients, etc., and have you been put on notice by your employees. The courts look to the reasonable person standard. (This is an objective standard that compares how the individual’s behavior in this particular situation compares with the behavior of a hypothetical “reasonable and prudent person” in the same set of circumstances.)

As the employer, you are under an obligation to maintain a working environment that is not hostile. Once your employees have put you on notice (i.e., made you aware of the bothersome situation), you must take positive steps to resolve it. If at all possible, use a pyramid system of discipline (i.e., a verbal warning, followed by a written warning, followed by further disciplinary action—possible salary decrease, probation, requirement to update skills, etc.—which, if not met, may result in termination). Be sure to document your actions as well as the complaints of other staff, and promises to change by the employee, etc.

Because you’ve already requested the employee stop this behavior (assuming that this was verbal, but it should also have been put into writing), you’re now at the point where you must either place the employee on probation or fire him. It’s best if you have the documentation that can clearly indicate the problem, who made the complaints (be careful about revealing the specific name to the offending employee), when discussions were held, and what was said as well as promises made, and what follow-up has occurred.

It’s possible that the employee is now experiencing major personal problems (e.g., divorce, death, etc.) or has developed mental/emotional problems, or may have a substance abuse problem. A frank discussion is in order to see if you can determine why this behavior has now arisen. If professional counseling or medication will help, then you may be able to retain this employee.

You can place the employee on a two-month probationary period with the understanding that if this occurs again, you will have to let him go immediately—but that is not what you really want to do, since he has been a valued employee.

If your office policy manual and/or employee contract does not cover this type of situation, consider adding it to your manual. You need to include the specifics of how and where to complain and what the employee should expect in terms of resolution. Your standard procedure on how to report workplace harassment is essential and should be laid out very specifically and clearly.

Some topics and jokes, pictures, etc., should be very specifically off limits in your office (and this needs to be in writing). Consider instituting a zero-tolerance policy for harassment, political discussion, religious discussion, etc., along with the statement that if violated, this may be grounds for immediate termination or disciplinary action.

Some behavior may be so egregious that it calls for immediate dismissal of the offending employee. Your office policy manual should include a boiler-plate sentence that indicates that “an employee may face immediate dismissal for any of the following (but not limited to) violations: working under the influence of illegal drugs or alcohol, harassing a fellow employee, use of obscene language, telling off-color jokes, disclosing privileged information, theft of goods or monies, etc.”

If you fail to take action to control or eliminate the problem and offending activity, you may now be legally responsible. An office meeting where you discuss the rules, examples of unacceptable behavior, and potential repercussions might be appropriate in this circumstance, along with the fact that you must be placed on notice first prior to being able to take any corrective action. If you accompany this discussion with input and suggestions from your staff, then you should have some excellent material to include in your manual.

A no-nonsense approach with firm guidelines, and the fact that you have an open-door policy and expect your staff to let you know if there is a problem so that you can take appropriate action, is best.

For specific legal advice on employment questions, consult your own attorney, and check with your state chamber of commerce or labor board for further clarification on employee issues. The advice given here should not be construed as legal advice for your own practice.

Dr. Miller is in private practice in Highland, Calif., and works as a practice management consultant and expert witness. She lectures and publishes extensively and has written seven books.