On January 28, 2016, Partner Maureen B. Heffernan spoke to the Woodbury Medical Society on the topic of Social Media- Identifying Issues for Physician Practices.  Physicians, both as employers and as health care providers, need to be aware of the importance of social media policies for their employees.  Those policies need to comply with current legal standards both in the employment law arena and in the context of patient privacy laws.

From an employment law perspective, Maureen's presentation identified the tension between preserving the rights of employees to engage in protected activity in the workplace and allowing an employer to enforce reasonable workplace conduct policies.   The National Labor Relations Board has issued numerous opinions regarding whether an employer can be deemed to have interfered with employees' protected rights under the National Labor Relations Act by virtue of a broadly written social media policy.   Many employers do not realize that they are subject to the National Labor Relations Act even though they do not have a unionized workforce.  Social media policies must be carefully drafted in light of the NLRB's recent activity in this area.

In addition, the patient privacy laws that are set forth under the Health Insurance Portability and Accountability Act /“HIPAA”, have a significant impact on the information that employees of a physician's practice may disclose.  Whether through the use, even “anonymously”, of social media posts or otherwise, improper disclosure of patient information must be addressed with appropriate internal disciplinary policies.

There are important legal compliance issues to consider when crafting a social media policy for an employee handbook or as part of your HIPAA Policies and Procedures manuals.  Policies that are overly broad may be found to be an unfair labor practice under federal labor law.  However, employees must be made aware of the proper and improper use of social media and the workplace consequences of violating an employer's properly framed policy.

Maureen Heffernan can be contacted with any questions regarding these issues at (712) 252-0020 or by email at: [email protected]