Follow the Law

TMA Helps You Obey State, Federal Employment Rules

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Practice Management Feature – November 2010


Tex Med. 2010;106(11):49-51.

By Crystal Conde
Associate Editor

Managing a bustling medical practice isn't easy. On top of treating patients, physicians have to be well versed in state and federal laws and regulations that govern employment. Luckily, the Texas Medical Association can help physicians keep up with the legal implications inherent in overseeing employees.

TMA's Knowledge Center, Practice Consulting, and Human Resources departments often receive questions from physicians regarding how to foster rewarding work environments. TMA experts can direct physicians to information about legal requirements and guidelines. (See "Human Resources Help Online.")

Jeppe Gustin Ross, TMA associate vice president of human resources, answers some common questions from physicians about overseeing an office staff and running a successful medical practice.

For additional help with human resources matters, call the TMA Knowledge Center at (800) 880-7955.


Q. What Occupational Safety and Health Administration (OSHA) requirements does my office have to comply with?

A. The OSHA Bloodborne Pathogens Standard applies to all employers with employees who have occupational exposure to blood or other potentially infectious materials, regardless of how many people a physician office employs.

Workplaces with 10 or fewer employees, however, are exempt from OSHA recordkeeping requirements and also are exempt from recording and maintaining a sharps injury log. All other applicable provisions of the Bloodborne Pathogens Standard still apply.

Under the standard, your practice must: 

  • Maintain a written exposure control plan;
  • Provide safety needles and puncture-proof containers;
  • Make sure your staff members follow "housekeeping" safety rules;
  • Provide gloves, masks, and other protective equipment;
  • Promptly evaluate and treat workers who have a needle stick or other exposure to blood;
  • Provide hepatitis B vaccinations to workers exposed to blood; and
  • Train workers each year on bloodborne diseases.  

If you are not sure how to comply with the OSHA Bloodborne Pathogens Standard in your practice, TMA can help. OSHA Compliance: Occupational Safety and Health Policies and Procedures is a customizable safety and health program designed to help medical offices comply with the latest OSHA regulations.

It is available in hard copy and on CD. To order the OSHA compliance manual, log on to the TMA website


Q. Am I required to offer employees benefits such as paid vacation, sick leave, or health insurance? 

A. Benefits are not a requirement. Texas law requires employers to pay employees only for hours worked and earned overtime.


Q. What are the required workplace postings? 

A. The Texas Workforce Commission (TWC) provides the required posters free of charge on its website, www.twc.state.tx.us/ui/lablaw/posters.html. The posters include:  

  • Texas payday law,
  • Uniformed Services Employment and Reemployment Rights Act,
  • Fair Labor Standards Act (FLSA),
  • Employee Polygraph Protection Act (EPPA),
  • Family Medical Leave Act (FMLA),
  • Migrant and Seasonal Agricultural Worker Protection Act (MSPA),
  • U.S. Department of Labor Occupational Safety and Health Administration,
  • Equal Employment Opportunity Act,
  • Americans with Disabilities Act of 1990, and
  • Workers' compensation.  

According to TWC, an employer must post the FLSA, EPPA, FMLA, and MSPA notices only if covered under the particular act. For more information, call the U.S. Department of Labor's Wage and Hour Division toll-free at (866) 487-9243.  


Q. How do I determine whether an employee qualifies for exempt or nonexempt status? 

A. FLSA lays out requirements for classifying employees as exempt vs. nonexempt. You may access the FLSA Fair Pay Exemption Questionnaire on the TMA website to help determine which employees in your office are exempt and which employees are nonexempt.

The U.S. Department of Labor has additional FLSA information on employee exemption online.


Q. Do I have to pay employees for overtime hours, lunch hours, and breaks? 

A. FLSA has information on overtime, lunch hours, and breaks. FLSA covers public agencies and businesses engaged in interstate commerce or providing goods and services for commerce.

Employees covered by FLSA must be paid at least one-and-a-half times their regular rate for all hours worked over 40 in a week (seven consecutive days). The regular rate of pay must be determined to calculate overtime pay, and it includes the base rate, bonuses, commission, piece rates, incentives, shift differentials, and training pay.

The regular rate of pay excludes premium pay under a union contract for Saturdays, Sundays, and holidays; pay for time not worked (vacation, sick time, and holidays); contributions to pension and insurance plans; gifts; employer discretionary bonuses; distributions from profit-sharing plans that meet the U.S. Department of Labor's Wage and Hour Division regulations; contributions to bona fide thrift and savings plans; and longevity pay.

Information on employees considered exempt from overtime pay is available on the U.S. Department of Labor website, www.dol.gov/whd/regs/compliance/fairpay.

Meal periods are not compensable if they last more than half an hour; if the employee is relieved of all duties; and if the employee is free to leave the workstation. Considered work time, breaks of 15 minutes or less are compensable.


Q. How should I handle employee termination?

A. Terminations should be handled with dignity and respect. Documentation should include what happened, when it happened, how you handled it, and the fact that the employee knew his or her job was in jeopardy. How a manager handles employee termination varies on a case-by-case basis.

TMA's Human Resources Department can field calls on this subject. Contact Jeppe Gustin Ross, associate vice president of human resources, at (800) 880-1300, ext. 1555, or Sheri Williams, human resources manager, at (800) 880-1300, ext. 1556.


Q. How should I handle employees who commit prescription fraud, have substance abuse problems, or steal sample medications?   

A. Call an employment attorney if you suspect this is happening. The TMA Knowledge Center has a white paper on responding to fraud or theft of prescription medication. Call (800) 880-7955 for more information.


Q. Can I require job applicants to take a drug test or require employees to submit to random drug testing after they've been hired?  

A. Yes. But be aware of how you administer the program. For example, do not test employees based solely on their sex, race, religion, national origin, citizenship, or age. The policy must apply to all employees and applicants, and they should all be treated the same.


Q. Where can I find salary information for medical office staff? 

A. The best resources for salary data are online. Career Builder offers a free salary calculator at www.cbsalary.com. The website allows you to search salary ranges by job title and to narrow the results by selecting your city and state.

The U.S. Department of Labor's Bureau of Labor Statistics website allows you to access wage information by area and occupation. The data can help with determining salaries for more than 800 occupations in 400 industries. A wage calculator is also available by type of occupation for more than 85 geographical areas and the nation as a whole.


Q. Can an employee be a patient in the practice that employs him or her? 

A. This isn't a good idea. There are Health Insurance Portability and Accountability Act (HIPAA) implications for the employee. For instance, a physician employer and the office staff would be privy to protected health information of an employee patient.

Crystal Conde can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by e-mail at Crystal Conde


SIDEBAR 

Human Resources Help Online

Turn to the Internet for additional information on employment law.

Texas Workforce Commission (www.twc.state.tx.us)
The Texas Workforce Commission (TWC) oversees and provides workforce development services to employers and job seekers. For employers, TWC offers information on labor law and labor market statistics. The Business and Employers section features links to job market and economic data, unemployment and labor law information, laws and requirements for employers, employee training programs, tax information, publications, and more.

U.S. Department of Labor (www.dol.gov)  
This site features information on employee benefits, hiring, retirement plans, termination, training, wages, work hours, workplace safety, and more. You can link to the Occupational Safety and Health Administration, www.osha.gov; Bureau of Labor Statistics, www.bls.gov; Office of Workers' Compensation Programs, www.dol.gov/owcp; and Wage & Hour Division, www.dol.gov/whd.

U.S. Equal Employment Opportunity Commission (www.eeoc.gov)
U.S. Equal Employment Opportunity Commission laws cover most employers with at least 15 employees. The website has a Laws & Guidance section that explains current regulations, policy guidance, types of discrimination, and other federal laws prohibiting employee discrimination.

U.S. Office of Special Counsel (www.osc.gov/userra.htm)
The U.S. Office of Special Counsel website has details on the Uniformed Services Employment and Reemployment Rights Act (USERRA). The act provides employment protections for those who serve or who have served in the U.S. Armed Forces, Reserves, National Guard, or other uniformed services. The website contains an overview of the act, the statute, federal and state regulations, and an important notice for employers.

Americans with Disabilities Act (www.ada.gov)
Highlights of the Americans with Disabilities Act (ADA) website include a guide for small businesses, a guide to disability rights laws, ADA tax incentives for small businesses, enforcement information, and regulations.

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