Emergency room technician Kathryn Knott was fired from Lansdale Hospital-Abingdon Health in Pennsylvania last year after complaining about patients on her Twitter account and posting pictures of them — including a severed finger — and in the process became a vivid example of how social media can go awry in health care. This and other incidents underscore the importance of implementing a social media policy.
“We can’t leave it up to chance,” said Jennifer Maggiore, CEO of Red Balloon Inc. in Phoenix. “Never assume employees will use the same good judgment that you would.” With the social-media revolution — Americans spend 510 minutes on Facebook a month on average, she said — compliance and privacy officers are considering how it implicates different laws, including HIPAA and the National Labor Relations Act (NLRA). Employers may assume that Facebook posts that bash or embarrass them are grounds for employee termination, but that’s not necessarily the case, says Minneapolis attorney Norah Olson Bluvshtein, with Fredrikson & Byron. The answer is it depends. If employees post a picture of themselves taking a bath in a sink at work, fire away, she says. “But other situations are more complicated,” with the National Labor Relations Board (NLRB) putting the cutting-edge fact patterns of social media through the prism of the 1935 NLRA. It probably doesn’t help that only one-third of health care organizations have social media guidelines, Maggiore said.
Front and center in social media use is the risk to patient privacy and potential HIPAA violations. Against a backdrop of respect for free speech, hospital and clinic employees are held to certain restrictions, says Nickie Braxton, privacy officer at Boston Medical Center. Health care workers may not mention patients or post photos of them on social media sites they use privately, she says. Employees may think it’s none of the hospital’s business because they use their own devices and personal accounts for Facebook, Twitter or other social media sites, and employees have blurred the lines sometimes between professional and personal. The superseding message: “What you learn in the hospital stays in the hospital,” Braxton says.
But it may sometimes seem like hospitals are talking out of both sides of their mouth. Hospitals have their own Facebook pages for communication and education, but they warn employees not to talk about their patients on their personal Facebook pages and, to some extent, the hospitals themselves. “On the one hand we are fostering the use of social media, and on the other hand we are saying, ‘you have to be very careful when you go on social media, and you can’t share patient information in any way or refer to patients in any way under threat of discipline,’” Braxton says. “It goes against the general cultural norm for employees who are so used to sharing their lives on social media.” In particular, nurses and other clinicians can form intimate relationships with patients and may be tempted to friend each other on Facebook or Instagram, she says. “The challenge is to help people understand there is a professional life and there is a personal life. In your professional life, you are expected to be friendly toward patients, but you are not expected to friend a patient,” Braxton says. “People come here not because we are friends but because we uphold a certain professionalism and standard of care that we are expected to maintain at all times.”
Pictures on social media are off-limits. Even when everyone has agreed to take pictures, there is still a risk. Maybe the patients misunderstood or changed their mind later, or unrelated patients in the background show up in the picture and they haven’t given consent, Braxton says.
Social Media Fires Up NLRB
Anonymous postings will not protect employees and physicians, a lesson learned in a blogger case, Maggiore said at a May 13 Health Care Compliance Association webinar. A Boston pediatrician, who was a popular, award-winning but anonymous blogger, shared his experiences in medicine. “People loved it,” Maggiore said. “Things took a wrong turn when he published blogs” about serving as an expert witness for the defendant in a wrongful death case. The blogger, known as “Flea,” revealed too much, she said. The blogger was outed in 2007 as physician Robert Lindeman, and he admitted it, according to The Boston Globe. “There’s no such thing as anonymity online,” Maggiore cautioned. People have the illusion of invisibility, and “that fans the fame of aggressive behavior.” Employees should be trained to post only items they can stand behind, she said. “Be proud of those posts, and if not, don’t post them,” she said. Employees also use social media to comment on hospitals and other employers, and how they react — firing employees for nasty posts, for example — may have consequences. The NLRB, which enforces the NLRA, may uphold the termination, or not, which means back pay for the employee and reinstatement. The NLRA applies to union and non-union workers, Bluvshtein says. Sec. 7 of the NLRA gives employees the right to discuss the terms and conditions of employment. It’s construed broadly, she says, and covers wages, other compensation and how their supervisors treat them. That means employees can talk to each other critically about management, she says. Social media is turning into a flash point with the NLRB, which is “heavily focused on social media firing cases,” Bluvshtein says. Here are a couple of examples:
American Medical Response: A paramedic was fired in 2010 after posting remarks on Facebook about her supervisor, Bluvshtein says. The paramedic wrote that “looks like I’m getting some time off. Love how the company allows a 17 to be a supervisor,” referring to a psychiatric-patient code. A colleague asked what happened, and the paramedic responded that the supervisor was being a jerk (using a vulgar word). “Chin up,” the co-worker said. The NLRB declared the paramedic’s termination unlawful, Bluvshtein says, because “employees have the right to criticize supervisors.” The NLRB protected her posts also because “her fellow employees posted support,” Maggiore said. “They voiced their frustration.” The lesson here, Maggiore said, is that managers and human resources are not grasping the fact that social media is another communication tool that’s often protected.
SkinSmart Dermatology: An employee was fired from the dermatology clinic after daring her supervisors to do it on a social media site, Bluvshtein says. The employee said the supervisors were full of it and seemed to be steering clear of her because she didn’t bite her tongue anymore. “She claimed the post was protected because she has a right to badmouth her supervisor,” but that was not upheld by the NLRB. “No co-workers joined in the criticism. To be protected, it can’t be a single employee,” Bluvshtein says.
Because social media is a popular forum to comment on jobs, Maggiore suggested employers ask their
employees to include a disclaimer with their posts. “The NLRB says you can’t require a disclaimer, but you may suggest it,” she said. The disclaimer can be very simple — “opinions expressed are my own” — and preserve the objectivity of the comments, whether positive or negative.
Boston Medical Center continually trains employees on social media, Braxton says. She distributes the policy, writes articles and does email blasts. “It’s not just about what you can and can’t do, but why,” she says. “It’s trying to let people understand the reasoning behind the rules.” Braxton attends meetings with the leadership forum — managers, executives and directors — to talk about compliance issues, including social media. “We have huddle cards sent every week to our hospital managers, which they discuss with their teams, and social media issues are on a number of them,” she says.
Contact Braxton at Nickie.Braxton@bmc.org, Bluvshtein at email@example.com and Maggiore at firstname.lastname@example.org.
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