Termination of Employees in the Dental Practice

Termination of employees in the dental practice can be a situation laden with both emotional and legal issues which should be dealt with carefully.  If the termination is because of lack of work for the employee, lack of meeting performance expectations, failure to follow office rules, scheduling problems or even just a personality conflict with an owner or key employee, there are legal rules that must be followed prior to the decision to terminate, during the separation process and after the separation.

If the practice has an employee handbook, the procedure is made a great deal simpler, since the rules of the workplace and the termination procedures are set out in writing.  Employment handbooks are not necessarily considered employment contracts, particularly if there are appropriate disclaimers stating that they are not.  Rules in the handbook should lay out policies on discrimination, sexual harassment, communicating electronically in the workplace, HIPAA requirements, and OSHA and other safety requirements.  When an employee is terminated for violating policies in these and other areas, and the procedures for warnings and discipline are laid out step by step the termination process can be  more easily be handled without chances of an employee challenging the termination.

If performance reviews are the basis for the termination then they should be cited in a documented letter of termination.  If illegal activity is suspected, then all the details must be laid out specifically, and loaded terms such as embezzlement or drug use should be used very carefully.  Accusing someone falsely of a crime, with a possible negative  impact on future employment or reputation can easily be turned into a slander suit.

Manufacturing reasons for termination in order to hide discriminatory intent or termination of an employee for reporting such things as OSHA violations can be determined to be an illegal pretext for discharge.  Documentation and substantiation of the real reasons for termination must be on record.

If the separation from employment is a voluntary one on behalf of the employee, obtain a written letter of resignation.  This is necessary for avoiding paying unnecessary unemployment benefits as well as avoiding a host of liability problems taking place when an employee is discharged rather than leaves voluntarily.

The other employees in the practice should be notified of the termination and the real reasons it is taking place.  Those employees, particularly if friendships with the exiting employee have developed, often can side with the terminated employee, and can possibly be negative witnesses against the employer should a liability action be brought.  The fairness of the employer’s actions should be well known within the workplace so that the leaving employee’s version of the reason for termination does not distort the process against the employer.

Violation of HIPAA and other privacy statutes is a major consideration in terminating employees, for the penalties for employee violations of privacy regulations are severe, and employees which are consistent violators should be dismissed.  Likewise, in order to avoid violations which may result as a result of an employee leaving with protected health information, their access to such information should be  immediately stopped.  All passwords and combinations in the office should be changed, all keys returned and any laptops or handheld devices with any patient information should be turned in.  The HIPAA privacy officer in the practice should know the procedures required by HIPAA for termination and follow them.   Any voice mail or e-mail accounts should be cancelled, as well as any other access to practice information via the internet or by phone.

Post termination procedures are also important to follow.  The final paycheck should be delivered upon exit of the employee, with a notation that all benefits promised such as accrued paid time off, vacation pay, or sick leave pay have been paid in full.   Proper procedures under COBRA for notifying the employee that they can maintain health insurance for a limited period must be followed.  Unemployment benefits instructions should be clarified with the employee knowing whether he or she will be able to obtain benefits not.   Any policies on future references should be clarified, and perhaps a note to the employee that  only the job title, salary and dates of employment will be given to any prospective employers making history about job performance.

The termination of an employee is sometimes a difficult experience, especially when the reasons are not completely clear, such as when business is slow or a personality conflict is the basis for the termination.  The documentation of all parts of the process is essential to avoiding liability or future conflicts with the departing employee.



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