MISSISSIPPI HOSPITAL ASSOCIATION LEADERSHIP CONFERENCE
MISSISSIPPI HEALTHCARE EXECUTIVES ("ACHE")
IDENTIFYING AND ASSISTING THE IMPAIRED HEALTHCARE WORKER
June 9, 2010
The Grand Hotel, Point Clear, Alabama
Armin J. Moeller, Jr.
BALCH & BINGHAM, LLP
401 Capitol Street, Suite 200, Jackson, MS 39201
amoeller@balch.com
Tel. 601-965-8156
Fax: 888-594-5405
I.
II.
IMPAIRMENTS?
A.
Alcoholism
B.
Substance Abuse
C.
Chemical Dependency
D.
Addiction – Eating/Gambling/Self Destructive Behavior
E.
Mental/Emotional Instability
F.
Cognitive Impairment
G.
Voluntary/Involuntary – Does it Make a Difference?
SOCIETY'S CHANGING VIEW AND CONFLICTING LEGAL
OBLIGATIONS
A.
"I Did Not Inhale" to President Obama
B.
The Duty to Provide a Safe and Healthful Workplace Free of Recognized
Hazards
1.
Competent employees
C.
Duty to Provide Reasonable Accommodations Under the ADA
D.
The Illusion of "Zero" Tolerance
E.
Recidivism
III.
FROM SUSPICION TO ACTION
A.
Looking for Symptoms – Does a Problem Exist?
1.
Absenteeism
a.
b.
c.
d.
e.
f.
g.
h.
i.
2.
On-The-Job-Absenteeism
a.
b.
c.
d.
3.
difficulty in recalling instructions, details
increasing difficulty in handling complex assignments
difficulty recalling own mistakes
Spasmodic Work Patters
a.
7.
work requires greater effort
job takes more time
Confusion
a.
b.
c.
6.
accidents on the job
accidents off the job that affect job performance
Difficulty Concentrating
a.
b.
5.
continued and prolonged absences from the work area
frequent trips to the water fountain or restroom
long coffee breaks
physical illness on the job
High Accident Rate (and consequently, more accident claims)
a.
b.
4.
multiple instances of unauthorized leave
excessive sick leave
frequent Monday and/or Friday absences
repeated absences, particularly if they follow a pattern
excessive tardiness, especially on Monday morning or after
lunch
leaving work early
peculiar and increasingly improbable excuses for absences
higher absenteeism rate than other employees for colds, flu
frequent unscheduled short-term absences, with or without
medical explanation
alternate periods of high and low productivity
Report to Work
a.
8.
Generally Lowered Job Efficiency
a.
b.
c.
d.
e.
f.
9.
coming or returning to work in an obviously
abnormal/impaired condition
missed deadlines
mistakes due to inattention or poor judgment
wasting more material
making bad decisions
complaints from user of product
improbable excuses for poor job performance
Poor On-the-Job Employee Relationships
a.
b.
c.
d.
e.
overreaction to real or imagined criticism
wide swings in morale
complaints from co-workers
unreasonable resentments
avoidance of associates
Source: Chris Drake, Account Manager, Metropolitan Family Services, Employee
Assistance Network, Chicago
B.
Suspected Impairment – Observation Checklist
OBSERVATION CHECKLIST
Employee Name ______________________________
1. WALKING
_____Stumbling _____Staggering _____Falling _____Unable to
Walk _____Swaying _____Unsteady _____Holding On
2. STANDING
_____Swaying _____Rigid _____Unable to Stand _____Feet
Wide Apart _____Staggering _____Sagging at Knees
3. SPEECH
_____Shouting _____Silent _____Whispering _____Slow
_____Rambling _____Mute _____Slurred _____Slobbering
_____Incoherent _____Confused
4. DEMEANOR
_____ Cooperative _____Polite _____Calm _____Sleepy
_____Crying _____Silent_____ Talkative _____Excited
_____Sarcastic _____Fighting
5. ACTIONS
_____Resisting Communications _____Fighting ____Threatening
_____Calm _____Drowsy _____Profanity _____Hyperactive
_____Hostile _____Erratic
6. EYES
_____Bloodshot _____Watery _____Dilated _____Glossy
_____Droopy _____Closed _____ Normal
7. FACE
_____Flushed _____ Pale _____Sweaty
8. APPEARANCE/CLOTHING
_____Unruly _____Messy _____Dirty
_____Partially Dressed _____Body Excrement _____Stains
_____Neat _____Having Odor
9. BREATH
_____Alcoholic Odor _____Faint Alcohol Odor
_____No Alcoholic Odor
10. MOVEMENT
_____ Fumbling _____Jerky _____Slow _____Normal
_____Nervous _____Hyperactive
11. EATING/CHEWING
_____Gum _____Candy _____Mints _____Other
(identify if possible):___________
12.
Other observations: (visible drug use, possession, sale, etc.; attendance; poor work
performance or accident; tampering with drug test; credible reports, etc.)
Observed by:
Observed by:
Date:
Time:
Location:
C.
Missing Equipment/Theft/Drug Shortages
D.
What Can I Do?
E.
1.
Employee or non-employee?
2.
Non-employee
a.
physician
b.
employee of contractor/vendor
i.
effective employee?
ii.
right to require?
iii.
impairment program
iv.
right to order removal?
Can I Confront? – What Do Your Policies Say?
1.
Investigations policy
2.
3.
Cooperation policy
a.
full cooperation – answer all questions truthfully
b.
provide specimens upon request
Drug testing/alcohol testing policy – Mississippi Law
a.
4.
The prescription medications problem
a.
F.
G.
IV.
V.
public hospital – safety sensitive positions
HIPAA complainant release medical/drug prescription
records
Investigations – Who Can Assist?
1.
Audit/Ethics/Security department representatives
2.
HR professionals/department managers
3.
Private investigators/security consultants
4.
In-House/Outside counsel
Effective Witness Interviews
1.
General/Open ended questions
2.
Follow with focused questions
3.
Who, what, when, where and how questions
4.
Discover all details remembered
5.
Solicit interviewee for other witnesses/sources of information
6.
Don’t avoid the tough questions
OBJECTIVE OF INVESTIGATION
A.
Find Facts/Conclusions – Truth
B.
But if Not Certain – Good Faith/Reasonable Grounds Upon Which to Act
COOPERATION REVISITED
A.
Public Hospital Employees – Right Against Self-Incrimination?
B.
Right To Counsel? Representative?
C.
VI.
YOU CAN'T FIRE ME FOR THIS! OR CAN YOU?
A.
B.
VII.
Right To Record? (Where's My Court Reporter!)
Americans With Disabilities Act
1.
Must accommodate physical and mental impairments
2.
Alcoholism an impairment
3.
Recovering substance abusers protected
ADAA
1.
Employer to engage in interactive process to provide reasonable
accommodations to qualified individuals with disabilities
2.
What did you know/when did you know it?
C.
Hospital Need Not Be Clairvoyant
D.
Misconduct Versus Reasonable Accommodation
1.
Any knowledge of impairment?
2.
Any request for assistance?
3.
Self-identification and request for help
4.
Engaged in dischargeable offense
a.
knowledge of impairment prior to offense?
b.
attempted interactive process/intervention? rejected?
THE PROACTIVE HOSPITAL - LIMITING LEGAL RISKS WHILE
REQUIRING PERFORMANCE
A.
Statement of Policy – "Consistent with Our Hospital's Values We
Support/Assist Our Employees to Manage and Overcome Not Only
Ordinary but Even Extraordinary Challenges to Their Well Being
Including Chemical and Alcohol Dependency …."
B.
Policies!
1.
Cooperation
2.
Investigations
3.
HIPAA compliant releases
4.
Duty to report prescription medications and receive approval
C.
EAP
D.
Insurance Coverage for Treatment with Our Approval
E.
No Return Without Completion of Treatment/Release Satisfactory to Us
1.
The recidivism problem
F.
Last Chance Agreement
G.
Referral to Specialists – Hospital Contribution for Payment
H.
Impaired Physician Program
I.
Impaired Nurse Program
J.
Is It Fair? Strict Compliance, and Hope, and Never Giving Up?