DUIs, Texting, and Doctor’s Notes

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. You may need to revisit their job duties and potentially take adverse action.

Now for the human approach: Even if the DUI is in no way related to work, you still need to address this from an HR perspective. The best way to handle this right now is to talk to the employee to find out if this is going to affect their ability to get to work immediately (Is their car totaled? Was their license immediately suspended?) and if they are going to need time off in the immediate future (Did they sustain any injuries? Are there court dates coming up?).

This is a good time to refer the employee to the time off policies in your employee handbook and request that they let you know if they need days off to take care of matters related to the DUI with as much advance notice as possible.

Once the legal process unfolds, the employee may or may not receive a sentencing that impacts their daily responsibilities (jail time, suspended license, etc.). Moving forward, keep an open line of communication with the employee regarding this topic and make sure to document any conversation you have with them about this topic. We recommend using the HR Vault for this.
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 can potentially be considered hours worked. 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.

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

Now for the human approach: 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 employee 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 with 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.
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 that employees may be required to provide documentation for unscheduled absences.

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 assuming that this is actually the case.

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 an advisor would ask if this issue came through the Solution Center.

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 some other method.

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.

Apr 26, 2024

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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