Appropriate to call EE's DR?
deniseE
902 Posts
When, if ever, is it appropriate for an employer to call an EE's doctor? We have a former EE (now seeking UC) that submitted a leave slip-NOT connected with her FMLA leave- that one of our HR staff believed to have been forged.
The dr's office told us that the EE had not been seen for several months but that she had pre-authorized excuses available to her.
The EE told us that she had been seen, contradicting what the office told us...
Based upon this we termed her, citing her responsibility to be honest-since she was in a position dealing with highly confidential information.
Through the course of the UC investigation, the dr's office is backing her story that she called in and was told to just use a slip-no need to come in. Additionally, it does appear that she'd been seen in the office much more frequently than our staff was advised during the telephone call.
The big question I want to answer before the UC hearing tomorrow: did our staff properly contact the office. and did we act properly upon that information.
my gut says no: what say you?
The dr's office told us that the EE had not been seen for several months but that she had pre-authorized excuses available to her.
The EE told us that she had been seen, contradicting what the office told us...
Based upon this we termed her, citing her responsibility to be honest-since she was in a position dealing with highly confidential information.
Through the course of the UC investigation, the dr's office is backing her story that she called in and was told to just use a slip-no need to come in. Additionally, it does appear that she'd been seen in the office much more frequently than our staff was advised during the telephone call.
The big question I want to answer before the UC hearing tomorrow: did our staff properly contact the office. and did we act properly upon that information.
my gut says no: what say you?
Comments
I'm not familiar with pre-authorized excuses; but, if the doctor operates his clinic that way, I'm afraid your stuck with a medically excused absence. You might even want to consider retracting the termination and putting her back to work.
I didn't mean to give the impression that the UC office was investigating...but rather our internal investigation in prep for the UC hearing.
Returning her to work is not an option...
Edit: ps your big question "The big question I want to answer before the UC hearing tomorrow: did our staff properly contact the office. and did we act properly upon that information."
No way to know from your post. Put together a timeline on the course of events - include dates, times, meetings, contacts, documentation references. From here you should be able to determine the who, what, when, where and how of the situation and then able to answer the question for yourself. Anything that wasn't done properly, fix & anything that was done properly, congratulate the participants.
Thank you again for all of your suggestions and input. I think we'll be making some procedural changes in light of this matter.
I had a similar situation involving doctor notes. A manager thought one of our employees was forging doctor notes. He wanted me to call the doctor's office. I did not believe the employee had forged the document and I did not call the doctor's office because I believe most doctor's offices would not talk to you about their patients anyway. I solved the problem by requiring original doctor notes (not copies).
We have a written attendance policy that addresses doctor notes. Our employees receive written warnings prior to dismissal. If they don't provide doctor notes covering specific dates of absences, and they have reached the limit on points, then termination takes place. We have never lost an unemployment hearing involving discharge due to attendance. I would have concentrated more on her attendance rather than a possible dishonesty factor.
Naturally the emloyee was terminated. But in NJ there was a 6 week penalty when you are terminated for cause and then the person could collect their full benefit. Go figure.
I think if you do intend to go to the hearing and contest UI, you must stick with the fact that she was terminated for being untruthful with you, if in fact she did lie to you. It's not possible to un-terminate her, unfortunately for this UI case. I still feel that you will lose the UI case. Hopefully that will be your only worry. If she's a protected class member, this attorney may simply be using the UI hearing as a stepping stone, not that he needs one. You say that 'bringing her back is not an option' like somebody there really has a problem with her.
Hopefully her file will contain support documentation that you can couple with her lying as a basis for termination. It's too late now to construct a reason for her firing. You've already documented that on the UI questionnaire. You might respond to the question of "Why was she terminated?" with "Her lying to the company was the final straw." That opens the door for her attorney to fall into the trap of getting you to speak for the record about her other misdeeds or poor performance. Either he or the Hearing Officer will surely ask.
Another thing for you to know is that a tape of the UI appeal hearing is admissable in court or can be subpoenaed by the EEOC should she go in those directions after her UI hearing.
I don't know your appeal experience, but don't let her attorney beat you up. He's not exactly at the top of the food chain if he spends his time making a hundred bucks at a UI hearing.
In this case, it is "falsification of documents surrounding your August 11-13 absences"
The doctor's office issued a letter following the termination stating that the employee did not falsify the document. Her attorney has that and will call a member of the office staff to testify.
Our attorney has advised that this is probably not a good case to fight, but the powers that be would rather mount a defense than give in.
It seems to me that you do have a reasonable case to make that the employee should be fired if she falsified the doctor's statement or intentionally misrepresented information related to her absence.
If you orignally questioned the credibility of the doctor's statement you were corrct to check it out with the doctor.
While HIPAA MAY have required you to present a release of information signed by the emplyee at that point before the doctor could provide any information, apparently the doctor had no problem since she told you the history of the "doctor's notes." It is questionable, as I see it, whether in fact HIPAA would require a release in this situation, since you weren't asking for specific medical information but only looking into the doctor's office procedures.
Based upon what the doctor told you, you then considered the likelihood of falsification. I assume you talked to the employee before deciding on that and the discharge.
However if you know now that the doctor is reversing herself by changing the information that was originally told to the HR person, that does present a different problem. You have to make an assessment on it. But make sure that is what is happening. Did anyone obtain a written statement from the doctor at the time HR made its
"investigation"?
but if the doctor really isn't changing her story, at the UC hearing if you can present the doctor in person it will weigh just as heavily as evidence as the employee's testimony at the hearing that the doctor's statements weren't pre-signed. Or perhaps you can present the office manager or receptionst or nurse who can testify as to what the doctor's procedures are or present evidence that the office requires appointments or sign-ins of patients and there are no employee signatures or appointments on those days. Whether you would need a written release from the employee to present evidence about the procedures or evidence as to sign ins, that would also be highly questionable. If there is a problem, then perhaps, have the UC judge issue and administrative subpeona so that you could present direct testimony from the doctor or her staff.
Your testimony as to what the doctor told you is hearsay but most likely will be admitted. But it is possible the UC judge won't be able to sustain a finding that the notes were pre-written ust based upon your hearsay testimony when confronted with the ex-employee's own direct testimony that he did go to the doctor (unless you can establish the employee just isn't credible on that point -- e.g., the employee was out of town that week or the doctor's office was closed, etc).
As you see the issue then turns on credibility and the preponderance of evidence.
As far as addressing poor attendance instead of falsification, you didn't provide any information in your post that the employee did have an absence problem warranting discharge. Thus, assuming that there was no absence problem, and that falsifcation of information immediately rendered the employee unsuitable for employment with your company.
>or not is a question of fact
Ahhh, if only that were true. If UI determinations and hearing outcomes were based on fact, the employer would win 90% of them. In reality, the system is designed as a fact-finding machine which is supposed to crank out unbiased, pristine, fact-based decision. But, after the claimstaker and the claims examiner gather facts and apply their notion of the state law and then the hearing officer (referee, judge, DLJ) listens to the "Facts" as both the employer and claimant understand them to be, the officer then applies his notion of the law and lastly, his opinion as to which way the case should turn.
If decisions turned on facts, then the fact that an employee violated our attendance policy coupled with the fact that such violation equals termination....would result in a denial of benefits everytime, since those are the facts and are uncontested by the claimant. However, the hearing officer will typically go beyond those facts and decide the case on his belief that a medical absence, for example, or a blown-tire, for example, should not result in a termination because they were not of the claimant's choosing. And an award is made in favor of the claimant. Thus very very frequently the decisions are not fact based at all. What begins as a search for facts becomes a springboard for opinion and feeling and fairness. None of which are fact.
Just my humble opinion having worked in that system for many years. x:-)
If only they were based on the "Facts" and not the opinion of the referee, judge, etc. My experience is if you can't back up your story with hard documentation concerning why the ee was dismissed due to mis-conduct, failure to follow policy, attendance, poor performance, etc. then the employer will not win the appeal.
Best of luck,
Dutch2
Think about it.
Gene
If, in fact, a member of the doctor's office staff was called, I would ask if this was a routine practice for them to do this?
Having worked in the medical field for years, I can tell you that the staff probably made all these calls and the physician was never involved. It's also possible that the patient stole the prescription pads.
We had an Admin Asst in a hospital that I worked for issuing excuse slips for her friends to be out of work and signing a doctor's name to it and it was not even the doctor's patient.
For future reference and to keep you out of hot water, it's really never appropriate to call a physician's office questioning anything about an employee. It's rare they would even discuss such a thing, but if you happen to get someone with "loose lips", they will quickly learn they have violated confidentiality and they, themselves, could be in big trouble. Unfortunately, there are lots of ways for employees to get out of work and lie, cheat, steal or whatever they have to do.
Here's what I believe happened...when our staff called to check-she was not given accurate information. I, too, was surprised that the office even responded to the questions; however, it makes sense if they were knowinly providing bogus information OR...they pulled up the wrong file. This EE has a fairly common name, and it's certainly possible.
The hearing is this afternoon...I'll keep you guys posted....Thank you for all of the information and support!