AMARILLO, TX – The most important assets that the DME supplier has are its employees. When employees are doing their jobs, and are working as a team, then the DME supplier functions smoothly…and probably successfully. On the other hand, HR challenges can cause discord and can adversely affect productivity. This article discusses the most common HR problems that DME suppliers face and the proactive steps that suppliers can take to avoid these problems.

Employee Disability
In determining whether an applicant is qualified for a position, the DME supplier can only consider whether the applicant is able to perform the job at the time of his/her application. The supplier cannot consider whether the applicant’s abilities may change or decline due to a disability. For pre-employment testing, the supplier can only test the skills necessary for the job.

Once the employee is hired, unless the supplier has knowledge of impairment, then the supplier should treat the employee the same as other employees. If the supplier has actual knowledge of impairment or can glean disability by observation, the supplier should engage in an interactive discussion with the employee about whether reasonable accommodations are necessary.

If an employee comes forward with a disability that may pose a direct threat to the workplace, then the supplier should (i) ask for input from the employee; (ii) consider giving the employee paid leave while the supplier determines whether there is a direct threat; (iii) research whether the condition is a direct threat to the workplace; and (iv) analyze the job duties to determine whether the supplier can make a reasonable accommodation.

The DME supplier should consider allowing an employee (with a disability) a part time or modified schedule as a reasonable accommodation unless doing so will create an undue hardship for the supplier…and the supplier will need to be able to prove the hardship. The supplier should keep the employee’s medical records separate from the employee’s regular personnel file.

Fair Labor Standards Act (“FLSA”) Misclassification
Over the past several years, there has been a surge in (i) lawsuits and (ii) FLSA complaints filed with the U.S. Department of Labor (“DOL”). The most common allegations are those involving alleged misclassification schemes from years past. Damages for an FLSA misclassification can include (i) back pay for the preceding two or three years; (ii) double damages; and (iii) attorney’s fees. In determining how to properly classify an employee, the supplier should focus on two key concepts: (i) Is the employee an exempt employee paid on a salary basis? (ii) Is the salaried/exempt employee properly classified as exempt?

When a misclassification complaint is filed with the DOL, the DME supplier should take the following steps:

• The supplier should not ignore the complaint. The supplier should quickly seek legal advice.
• The supplier should deal respectfully with the DOL.
• The supplier should examine and, if necessary, update job descriptions and employee handbook provisions. In so doing, the supplier should ask the following questions: (i) Do the descriptions/provisions accurately describe the employee’s job duties? (ii) Are the job duties exempt?
• The supplier should re-examine its employee classifications and determine if duties should be modified. In so doing, the supplier may want to consider (i) adding responsibilities; (ii) including the supervisor to a large degree in the hiring, firing and disciplinary process; and (iii) ensuring that exempt positions are significant to the supplier’s operations.
• The supplier should ensure that the salary basis for exempt positions is strong: (i) weekly salary; (ii) no hourly rate; (iii) no improper deductions; and (iv) errors are immediately addressed.

Review and Revision of Employee Handbook
When reviewing its employee handbook, the DME supplier should answer the following questions:

• Are disciplinary problems referred to as misconduct?
• Is the supplier hamstrung by its own policies? For example, does the policy require a certain number of infractions before termination is appropriate?
• Are the supplier’s policies clear? For example, does the supplier’s anti-solicitation policy include everything that the supplier considers to be solicitation?
• Does the policy have discretionary language? For example: “Misconduct includes, but is not limited to ________.”

Investigating Harassment Complaints
The DME supplier should investigate the complaint immediately…but with a concerted plan of action. The supplier should document the investigation and the findings, but the supplier should keep in mind that such findings are discoverable in a lawsuit. The supplier should not promise confidentiality because it cannot ensure that such confidentiality will be maintained. The supplier needs to ensure that the investigators and supervisors know that the participants are protected. Lastly, the supplier should be aware that investigating the issue raised in the complaint can lead to other issues that need to be addressed.

Documentation
Accurate/contemporaneous documentation is important for all decisions pertaining to employees: hiring, compensation, discipline, investigations and termination. A discriminatory motive can be proven by evidence of inconsistency and/or unfairness. It is important to remember the old saying: “If it is not documented, then it did not happen.” But then there are two newer sayings: (i) “If it is not written, then the employer did not give the employee a chance (fairness);” and (ii) “If it was written, then that is likely how it occurred.”

One of the reasons that documentation is important is because claimants will compare themselves to similarly-situated employees when claiming discrimination.

Key tips for proper documentation include:

• Timeliness – The documentation should be contemporaneous with the conduct.
• Be specific and where appropriate include examples.
• If the employee received prior counseling from the employer, then the documentation should so reflect.
• The supplier should not limit its employee counseling to just one type of conduct.
• Identify potential consequences of employee conduct.
• Do not dramatize. The documentation should capture the conduct, not the emotions.
• Obtain employee acknowledgement when possible.

An employer’s counseling memo should contain the following:

• Employee’s name.
• Date of violation.
• Employee’s supervisor.
• Cause of warning. Options might include violation of personnel policy, violation of safety policy, poor performance.
• Description of the employee’s improper conduct.
• Previous employee warnings.
• Current action. Options might include verbal counseling, written warning, termination warning, termination.
• Corrective action.
• Acknowledgment language. This should include receipt of written information provided to the employee and acknowledgment that the employee agrees to correct his behavior or he may be subject to additional disciplinary action.
• Employee signature, signature of the employee’s supervisor, and the date of each signature.

Termination
If the DME supplier has taken the necessary steps to help the employee improve his performance, and if the employee has not improved, then it may be time to terminate the employee. The major types of termination include termination for cause, ethical violations, performance-related issues, poor personality fit or bad attitude, attendance issues, violation of company policies, and lack of work.

In considering termination of an employee, the supplier should read its employee discipline policy. Does the policy require the employer to follow a certain disciplinary procedure? How has the DME supplier handled this type of infraction in the past? What does the supplier’s policy say about paying for accrued but unused vacation/PTO? Other questions that the employer should ask include:

• Has the employee been disciplined in the past?
• How recent was the employee’s last discipline? What was the discipline for?
• Was the employee given a final warning?
• Is the employee under a written improvement plan?
• Does the employee have a written employment agreement? If so, does the agreement contain termination provisions? Is “termination for cause” defined in the agreement? Does the agreement include a notice requirement? Is the supplier’s employee handbook consistent with the employment agreement?
• Does the employee’s personnel file support termination?
• Has the employer followed its written policies?
• Has the employer been consistent with how it deals with its employees?
• Might the employee be a potential whistleblower?

In giving the notice of termination, (i) the employer should be clear regarding the reason for termination; (ii) if the termination is for more than one reason, then the employer should list all of the reasons; (iii) the employer should cite the policy violated; (iv) the employer should reference previous disciplinary actions and warnings; and (v) the employer should cite objective criteria.

In preparing to terminate the employee, the DME supplier should first decide whether or not it will allow the employee to resign. During the termination meeting itself, the employer should not argue, minimize or apologize. How will the employee gather his personal belongings? Does the employer need to alert security in advance? The employer needs to be prepared to terminate the employee’s access to email, the building, and remote login.

During the termination meeting, the HR Director and the employee’s supervisor should attend. Normally, the best time to have the meeting is at the end of the day on Friday. The HR Director, the supervisor, or a third company representative attending the meeting should be designated to take notes. Documents to be presented/gathered include (i) the notice of termination; (ii) if applicable, the severance agreement and release of claims; (iii) if applicable, a confidentiality and non-compete agreement; (iv) COBRA notice; (v) benefits information; and (vi) final paycheck.

AAHomecare’s Retail Work Group
The Retail Work Group is a vibrant network of DME industry stakeholders (suppliers, manufacturers, consultants) that meets once a month via video conference during which (i) an expert guest will present a topic on an aspect of selling products at retail, and (ii) a question and answer period will follow. The next Retail Work Group video conference is scheduled for September 10, 2020, at 11:00 a.m. Central. It will be a roundtable discussion regarding “Part two: COVID-19 and how retailers are navigating this new world.” Participation in the Retail Work Group is free to AAHomecare members. For more information, contact Ashley Plauché Manager of Member & Public Relations, AAHomecare ([email protected]).

Jeffrey S. Baird, JD, is chairman of the Health Care Group at Brown & Fortunato, PC, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies and other health care providers throughout the United States. Mr. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization, and can be reached at (806) 345-6320 or [email protected].

Bradley W. Howard, JD, is chairman of the Labor and Employment Law Group and a health care attorney at Brown & Fortunato, PC, handling governmental investigations, business disputes, and litigation involving health care providers including pharmacies, DME companies, manufacturers, home health agencies, and hospitals. Mr. Howard is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, and can be reached at (806) 345-6310 or [email protected].