Working with Pharmacy Employees: Mistakes to Avoid

The most important assets that the pharmacy has are its employees. When employees are doing their jobs and are working as a team, then the pharmacy functions smoothly and more successfully. On the other hand, human resources (HR) challenges can cause discord and can adversely affect productivity.

This article discusses the most common HR problems that pharmacies face and the proactive steps that pharmacies can take to avoid these problems.

Employee Disability

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

Once the employee is hired, unless the pharmacy has knowledge of impairment, then the pharmacy should treat all employees similarly. If the pharmacy has actual knowledge of impairment or can glean disability by observation, then the pharmacy 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 pharmacy should ask for input from the employee, consider giving the employee paid leave while the pharmacy determines whether there is a direct threat, research whether the condition is a direct threat to the workplace, and analyze the job duties to determine whether the pharmacy can make a reasonable accommodation.

The pharmacy should consider allowing an employee with a disability to have a part-time or modified schedule as a reasonable accommodation unless doing so will create an undue hardship for the pharmacy, as the pharmacy will need to be able to prove the hardship. The pharmacy 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 lawsuits and FLSA complaints filed with the US Department of Labor (DOL). The most common allegations are those involving alleged misclassification schemes from years past. Damages for an FLSA misclassification can include back pay for the preceding 2 or 3 years, double damages, and attorney’s fees.

In determining how to properly classify an employee, the pharmacy should focus on 2 key concepts:

• Is the employee an exempt employee paid on a salary basis?
• Is the salaried/exempt employee properly classified as exempt?

When a misclassification complaint is filed with the DOL, then the pharmacy should take the following steps:

• The pharmacy should not ignore the complaint and should quickly seek legal advice.
• The pharmacy should deal respectfully with the DOL.
• The pharmacy should examine and, if necessary, update job descriptions and employee handbook provisions. In so doing, the pharmacy should ask the following questions:

• Do the descriptions/provisions accurately describe the employee’s job duties?
• Are the job duties exempt?

• The pharmacy should re-examine its employee classifications and determine whether duties should be modified. In so doing, the pharmacy may want to consider adding responsibilities; including the supervisor to a large degree in the hiring, firing, and disciplinary process; and ensuring that exempt positions are significant to the pharmacy’s operations.
• The pharmacy should ensure that the salary basis for exempt positions is strong, with a weekly salary, no hourly rate, no improper deductions, and errors are immediately addressed.

Review and Revision of Employee Handbook

When reviewing its employee handbook, the pharmacy should answer the following questions:

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

Investigating Harassment Complaints

The pharmacy should investigate the complaint immediately, but with a concerted plan of action. The pharmacy should document the investigation and the findings, but the pharmacy should keep in mind that such findings are discoverable in a lawsuit.

The pharmacy should not promise confidentiality because it cannot ensure that such confidentiality will be maintained. The pharmacy needs to ensure that the investigators and supervisors know that the participants are protected. Lastly, the pharmacy 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 2 newer sayings: “If it is not written, then the employer did not give the employee a chance (fairness);” and “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, as 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 reflect it.
• The pharmacy should not limit its employee counseling to just 1 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, and poor performance.
• Description of the employee’s improper conduct.
• Previous employee warnings.
• Current action. Options might include verbal counseling, written warning, termination warning, and termination.
• Corrective action.
• Acknowledgment language. This should include receipt of written information provided to the employee and acknowledgment that the employee agrees to correct their behavior or they may be subject to additional disciplinary action.
• Employee signature, signature of the employee’s supervisor, and the date of each signature.

Termination

If the pharmacy has taken the necessary steps to help the employee improve their performance and 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 pharmacy should read its employee discipline policy. Does the policy require the employer to follow a certain disciplinary procedure?

How has the pharmacy handled this type of infraction in the past? What does the pharmacy’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 and what was it 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 pharmacy’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, the employer should be clear regarding the reason for termination; if the termination is for more than 1 reason, then the employer should list all of the reasons; the employer should cite the policy violated; the employer should reference previous disciplinary actions and warnings; and the employer should cite objective criteria.

In preparing to terminate the employee, the pharmacy should first decide whether 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 their 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 the notice of termination; if applicable, the severance agreement and release of claims; if applicable, a confidentiality and non-compete agreement; a COBRA notice; benefits information; and final paycheck.

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 jbaird@bf-law.com.

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 bhoward@bf-law.com.