Nowadays it seems like the use of smart phones constantly is such a important part of people’s lives that it would be considered a personal invasion to attempt to limit their availability even during work time. Employers are becoming extremely frustrated that employees are using their work time to use their phones to text, call, take photo, or search the internet. Dental practices are no exception, and rules restricting cell phone use are now common in every employee handbook for dental practices. It is important to understand the laws related to their use in the dental office workplace.
In dental offices, HIPAA restrictions on potential unauthorized release of protected health information place an additional burden on ensuring that employees don’t violate privacy laws by using their cell phones around patients. Using a cell phone to transfer health information to an unauthorized recipient is a HIPAA violation. Talking to a third party on the phone while also dealing with patients could allow for the release of health information unlawfully, even if it is inadvertent. For this reason, cell phone use while dealing with patients by providers or by office staff should be prohibited.
HIPAA has certain rules regarding relaying of patient information to patients via e-mails, texting or other “insecure” methods of communication without patient authorization. Patients must be notified that this may be an insecure way of communicating heal information and must authorize it directly. Texting unprotected information that is not health or financially related, like an appointment reminder, by cell phone is allowed, and staff should be made aware of this.
Dental offices sometimes prohibit cell phone availability or use at any time while at the practice, to the extent of requiring all cell phones to be deposited in a specific place at the start of the work day, to be picked up at the end of the day. This kind of rule is likely to be resisted by employees because they feel their phones are almost a part of them and that they feel uncomfortable leaving them anywhere but on their person. Rules allowing use only in emergencies and prohibiting their use during work hours are reasonable and lawful, and are commonplace.
It is surprising to know that until recently, the National Labor Relations Board had issued rules which made unlawful employer rules prohibiting use of cell phones because they could be used to discuss work conditions or coordinate worker actions, which are guaranteed rights under labor laws. Since December of 2017, however, that rule was narrowed so that only if cell phone use is used as a common part of normal workplace interactions amongst employees is it unlawful to restrict their availability to use.
The use of smart phones to relay health information is now starting to be employed increasingly as a diagnostic tool as well, with accessibility to the free flow of patient information and reference materials between providers being a useful tool in treatment. Using encryption in these cases prevents the possibility of HIPAA violations because of hacking or other unauthorized use.
Restricting use of cell phones during break time can also present some legal problems for dental offices. What if an employee uses his or her smart phone to take pictures of OSHA violations or other regulatory violations for use as evidence in making a complaint? Forcing employees to delete such photos might be used as evidence of intent to circumvent regulations if their is an investigation later or if the employee decides to bring a whistleblower action.
The use of phones during work time is also distraction for practice employees, and when dealing with treatment, negligence can be alleged if cell phone use coincides with dental malpractice.
Most employers are upset by the interference cell phone use has on an efficient uninterrupted workplace. Dental practices are also impacted, and employers should be aware of how to best set office rules regarding cell phone use that are effective, fair and lawful.
By Brian Hatch
Hatch Legal Group
8 North Main Street
Attleboro, MA 02703
Phone: (508)222-6400
hatchlegalgroup.com
brianhatch@hatchlawoffices.com
