Behavioral health providers have been navigating uncharted territory for seven months and counting. Given the upcoming election and the persistence of the COVID-19 emergency, that uncertainty is likely to continue in the months to come.
While there’s no way for providers to know exactly what the future holds, there are a few actions they can take to safeguard themselves from a legal standpoint.
Chiefly among those are developing new remote work rules and social media policies, or improving upon those that already exist, according to national employment lawyer Theresa Gallion, who has worked with behavioral health organizations since 1988.
Gallion, who is a senior lawyer and partner at Cornell Smith Mierl Brutocao Burton, says questions about COVID-19 and social media usage have dominated the labor and employment legal landscape as of late. She dug into those topics recently during a presentation at a virtual conference hosted by MHCA, a small, invite-only trade group for innovative and entrepreneurial behavioral health providers.
The first issue Gallion addressed was long-term telework flexibility, specifically for those workers who have a disability of some sort.
“One of the things we’ve all been worried about is this: If we permitted people to telework — if they indicated that they had a comorbidity or an autoimmune disease, for example — are we stuck forever going forward with that individual being able to telework as they did during the pandemic?” Gallion said.
As it turns out, the answer is no, according to recent guidance issued by the Equal Employment Opportunity Commission (EEOC) on Sept. 8.
While there are a few stipulations, the guidance is good news for any employers with more than 15 employers covered by the Americans with Disabilities Act (ADA), Gallion said.
“The employer has no obligation under the ADA to refrain from restoring the essential duties,” she explained. “If you want your people back, … change your job descriptions now if they do not [say] that work in person is an essential aspect of every person’s job.”
Documentation like that is key, according to Gallion. In addition to listing in-person attendance as an essential element of the job, employers should also document the reasoning behind their decisions, she said.
For example, productivity and communication issues could be reasons to terminate work-from-home arrangements.
“The COVID experience is kind of a trial period,” Gallion said. “If it hasn’t worked, let people know right now, ‘Your job requires you to be in the workplace.’ … Document whatever the deficiencies and issues were of your teleworking staff because that will support the position that you’re taking: That they need to return to work whenever in your state the COVID situation has reached a level where you’re able to require people to return full-time.”
Gallion warned employers not to rely on the undue hardship provision under the ADA, as she predicts those cases will be harder to win post-pandemic.
“Be crystal clear in your job descriptions and in your oral and written communications that in-person performance of the job is essential,” Gallion said. “That’s the guidance that I want to give.”
Social media suggestions
Another key piece of advice Gallion gave conference attendees was related to social media policies, which are increasingly important to develop and hone during a divisive election year, she said.
“I don’t think I can go a morning or an afternoon without a call from a client who is saying, ‘You’re not going to believe what one of my people posted on social media,’” Gallion said.
As such, she advised attendees to ensure their policies prohibit social media posts that are incompatible with equal employment opportunity policies; hate-filled; threaten violence; or cause embarrassment to the employer.
Such policies are allowed for private employees in all 50 states and can save behavioral health providers trouble down the line, Gallion said.
“I have been telling all my clients to send a message … that says, ‘Election cycles can be very challenging,'” she said. “‘Right now, there are some social and cultural developments and phenomena that not everybody agrees with. People have different views and opinions. Please remember that we serve the community. Please remember that we have many community partners and we have a workplace of dignity and respect. We have a workplace of tolerance that values all people. And we have equal employment opportunity policies — or maybe a code of conduct — that values all people. Any behavior incompatible with that will result in discipline.’”
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