- Long-term care facilities face significant risks when employees inappropriately use social media.
- Facilities should adopt social media policies specific to long-term care to address HIPAA requirements and recent National Labor Relations Board (“NLRB”) concerns.
- A well-drafted social media policy should include a commitment to protecting resident rights, provide meaningful penalties for breach, address the use of social media during work hours, prohibit the publishing of confidential and proprietary information, require abidance with a facility’s other discrimination and harassment policies, and address speaking on behalf of the facility.
Approximately 78% of all Americans have a social network profile and portable technology with instant communication is in the hands of almost all long-term care employees. Due to the surge in social media, younger direct caregivers tend to care less about privacy in their personal lives than prior generations. Whether Facebook, Instagram, Twitter, or Snapchat, employees’ use of social media creates unique challenges for employers, especially those in the healthcare sector, who may not wish to ban social media completely, but are mandated to protect resident rights and prohibited by law from allowing the sharing of protected health information (which includes photographs). These two factors further ignite when combined with immaturity and/or lapses in judgment of direct care workers.
Indeed, in just one report in February 2016, ProPublica detailed thirty-seven incidents when nursing home employees abused residents on social media over the past few years. The Washington Post and The Columbus Dispatch have also recently highlighted employees’ inappropriate use of social media platforms in the skilled nursing setting. The issue has not gone unnoticed by the United States Senate, and has led to inquiries by Senator Grassley into what steps the long-term and post-acute care profession is taking to address the problem.
WHAT SHOULD YOU DO?
Given these factors, it is essential that long-term care facilities are proactive in addressing social media use and educating their employees on the importance of privacy for their residents and under the law. The first step in this process is the adoption of a social media policy. Facilities should adopt a social media policy drafted specifically for long-term care that addresses the complexities of HIPAA and resident rights. Facilities should also consider having their social media policies reviewed for compliance with labor relations requirements. That is, the NLRB has scrutinized employers’ social media policies ensuring that they do not overreach and infringe upon employees’ rights. Thus, facilities’ policies must be drafted so that they are not so broad that they prohibit activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
Additionally, a well-drafted social media policy should address:
- acquiring the approval of residents prior to use of images;
- penalties for breaches;
- the use of social media during working hours;
- employee training;
- the publishing of confidential and/or proprietary information;
- discrimination and harassment;
- defamation; and
- speaking on behalf of the facility.
For internal consistency, we also recommend a facility’s social media and privacy policies reference each other.
Please note that this alert is intended to be informational only, and is not intended to be nor should it be relied upon as legal advice. Rolf Goffman Martin Lang LLP will not be responsible for any actions taken or arrangements structured based upon this alert. The receipt of this alert by an organization that is not a current client of Rolf Goffman Martin Lang LLP does not create an attorney-client relationship between the recipient and the law firm.
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