Sunday, October 20, 2013

Use of confidential patient information in grievance process

Allina Hospital, d/b/a/ St Francis Regional Medical Center, terminated the employment of grievant for the "intentional use and disclosure of patient records containing confidential and protected health information without a permissible business reason...." While processing certain patient records, grievant observed initials on the documents suggesting to her that non-bargaining unit employees might have performed bargaining unit work.  Grievant redacted, at least in part, patient identifying information, made copies of the documents and turned them over to a Union steward. There was no dispute that grievant's purpose was the pursuit of a grievance, but the hospital viewed the nature of that purpose as "neither here nor there." It terminated grievant's employment and the Union (SEIU Healthcare Minnesota) pursued the matter to arbitration.

The hospital presented evidence that it had consistently terminated employees who had improperly accessed patient medical information without a valid business purpose. This included the termination of an employee who accessed her father's medical records, the termination of 32 employees who accessed the medical records of a high profile patient, and the termination of an employee with  more than 30 years of exemplary service. Arbitrators had upheld the hospital's actions in all of these cases. Arbitrator A. Ray McCoy noted, however, that none of those cases addressed the situation raised in this dispute, i.e. "the fact that the conduct giving rise to the employer's discipline of the Grievant was also protected union activity."

Arbitrator McCoy noted that while the hospital presented evidence that it made a thorough review of the facts of this case, and a careful analysis of the conduct and its policies, the analysis proceeded from the erroneous assumption that, according to a hospital witness, "It was a well known fact that union activity was not a legitimate business reason." The hospital also relied on its conclusion that while its policy allowed it to use patient information in the processing of a grievance, the policy made no provision for the Union's use of that information.

Rejecting the position of the hospital, Arbitrator McCoy sustained the grievance and ordered the hospital to reinstate the grievant and make her whole for her losses. He concluded:

          the investigative and deliberative process[es] were fatally flawed and did not comply with the just cause standard called for in the Agreement. Given the specific facts regarding Grievant's conduct in this case, a proper balancing of the competing concerns, policies and rights should have led the employer to conclude that the Grievant had a legitimate business purpose for sharing the four files with her Union steward. A fair investigatory and deliberative process would have at the very least produced a concrete rationale for finding that such a balancing would still have led to the Grievant's termination. Here the Employer[] fails the just cause test because it specifically excluded a most critical fact even before undertaking its' investigation that both characterized and gave meaning to the Grievant's actions. It is only by stripping the very real fact that the Grievant's sole purpose was to pursue a right guaranteed her by the Agreement that one can conclude the Employer behaved properly. Doing so, however, would be in direct contravention of the Parties' Agreement.

Arbitrator McCoy's award can be found here.

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