QUESTION: We have a new employee who smokes. When she comes to work she smells like cigarettes, particularly her breath. What can we say to her?
ANSWER: While you won’t be able to stop the employee from smoking, and you can’t use the act of smoking as a basis for termination because it is a legal activity, you can certainly control how that habit affects your practice. To start, you should have two policies in place that address this issue. The first policy is typically part of an appearance policy. Among other appearance standards this states that employees who choose to smoke must ensure that their breath, clothes, hair, etc., never smell like smoke. Patient care requires all employees to be free of unpleasant odors, and failure to adhere to this standard can result in disciplinary action, which might include termination.
The other policy is a specific smoking policy that puts prohibitions on smoking inside the building and during work hours. You may even put restrictions on where an employee can smoke outside of the building (i.e., have a designated area for smoking). While you won’t be able to stop employees from smoking during their off time—breaks, lunches, and before or after work—you can certainly limit smoking while they’re on your property and on your time.
Once these policies are established, any breach of a policy would be handled just like any other issue you might have with your employees. In other words, address the problem through counseling, disciplinary measures, or possible termination. When you address the problem with the person, and when you write the policy, be sure to keep the issue job-related. It should never be about your approval or disapproval of smoking. It should be about how patient care requires all employees to look professional. This includes not having any offensive odors, whether that’s garlic after eating a meal, cigarette, or other odors.
If you don’t have these policies in place, I encourage you to make the change as soon as possible. That way you have a basis for holding employees accountable for their actions. However, regardless of whether or not you currently have the policies in place, you can still address the problem with this employee by informing him or her that this is a problem that must be corrected.
QUESTION: This practice is changing owners. The new dentist wants to give 90-day probation to all existing employees in order to rehire them if he is satisfied with their performance. Is there legally a problem if he does this?
ANSWER: The concept that an employer can put employees on a “90-day probationary period,” which will allow the employer to evaluate them before hiring them, is a myth. If this new dentist takes over the practice and continues to have these employees work for him, they have been hired fully by him and are his employees. The first 90 days can certainly be an orientation and training period, which allows for evaluation of employees and might result in some being let go if they don’t meet the new dentist’s standards. But any potential consequence as a result of doing so is still there (i.e., a wrongful discharge lawsuit).
This dentist should work with his lawyers who are assisting with the sale about the best way to take over the practice and the employees. Our experience suggests that all employees should be terminated by the former dentist and then rehired by the new dentist. This means the new dentist will do everything he normally would to evaluate a potential new hire—screen the people, interview them, conduct skills assessments, and get applications completed before he hires them as his own employees.
As an aside, we suggest not using the terminology “probationary period” because it has been shown to negate an employer’s “at-will employment” status.
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Human Resources Questions for Dentists is provided by Tim Twigg and Rebecca Boartfield of Bent Ericksen & Associates. Tim Twigg is president and Rebecca Boartfield is a human resources compliance consultant with Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists deal successfully with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more about its services, call (800) 679-2760 or visit bentericksen.com.
