How Strong is Your Employee Cell Phone Policy?

Many of us are attached to our cell phones and a tap or two away from our social media accounts 24/7 these days. This poses unique challenges to medical and dental practices when it comes to regulating employee behavior on the job.

Unlike so many other businesses, doctors and practice managers have to worry about upholding standards of patient care, HIPAA and Protected Health Information (PHI) confidentiality requirements, and all sorts of other layers of responsibility. Instead of assuming you can deal with problems if or when they occur, your practice has enhanced legal obligations to foresee threats and mitigate possible negative outcomes.

“Put all cell phones in the basket during work hours”? It’s not great HR…

With all that on the line, it’s tempting to create policies like this one I heard recently: “Employees must place all cell phones in the basket during work hours.” But there’s a problem with this type of approach. It’s not great HR.

Policies like this one sound like they might be effective, but employees are adults. These policies tend not to be well received, because employees feel like they are coming to work as an adult, but are then being treated like a child.

So what’s the wisest alternative?

From an HR perspective, there’s no single easy answer that fits all practices. An effective employee cell phone policy needs to cover quite a few different elements and scenarios:

  • Not in front of patients
  • Not on the clock
  • Never in the clinical areas or at the front desk
  • Only in the break room / outside the practice / etc.
  • And more…

And each office is different, so that’s a challenge, too. Many practices have no break room. Some have no break room but always have one of the clinical rooms open, and that is where employees can go for privacy. Your rules many need adjustment, within the boundaries of what is enforceable in your state.

The hard, scary facts

It is not reasonable to expect that social media usage stops cold and your employees’ personal inbox disappears at work just because we, as employers, make a rule. And while our policies should treat employees as the responsible adults that most of them are, they do need to be robust, clear and enforceable if rules are broken.

Here are some points to consider:

  • It’s critical to ensure your policies do not violate federal, state or even local laws.
  • Today’s phones are also cameras and recording devices. They store images and videos, voice recordings and data. They also have USB interface capabilities.
  • Your HIPAA compliance policy and your training program are separate issues, but they do interrelate a bit with your social media and employee cell phone policies. All employees must have signed their acknowledgement and be fully trained in their HIPAA compliance responsibilities, including the safeguarding of PHI. They should know better than to photograph or post any patient details on social media (even your practice’s) without formal patient authorization, or to discuss patients with anyone not at your practice and who doesn’t have a need to know. Your employees must also understand how very severe the consequences of HIPAA violations can be.
  • Regulating employee behavior on breaks can be problematic. The National Labor Relations Board (NLRB) could develop an unhealthy interest in you if your policies impede employees’ abilities to organize or better their working conditions. If breaks are state-mandated, your state may also limit what you can require of (or forbid) your employees during their own time.
  • If you allow use of smartphones, which include cameras, when off the clock, and an employee snaps a picture of something in your clinical area, what are your options as an employer? (For instance, can you fire them if you don’t also have a policy that also says, “No pictures in the clinical area”?) What if they’ve photographed an OSHA violation?

I could think of fifty other tricky situations you could find yourself in before even stopping for breath. These are tough calls–literally! To keep you safe, your cell phone policies need to be thorough without being overly restrictive, and enforceable when you need to discipline or terminate, without treating your employees as children. In other words…they need to be created by an expert, and it doesn’t hurt to have expert advice on hand when you need to enforce them in any difficult situation.

Speaking of all the trouble cell phones lead us into: I know of at least one instance when an employee intentionally baited the doctor as she was being fired, and recorded the ensuing screaming match with her phone in her shirt pocket.

I know, I know, you’re left wanting to say, “All phones go in the basket!” But…employees are adults.

Friendly Disclaimer: This information is general in nature, and is not intended to replace good counsel about a specific issue with either your attorney or your favorite HR expert.

May 19, 2015

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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