By John Paul Marosy, President
Bringing Elder Care Home LLC
jpmarosy@charter.net
(508) 854-0431

"Elder care is not a common topic at the office water cooler. There are a variety of reasons for this, including fears about aging and the commonly-felt confusion that surrounds elder care. Many working mothers and fathers will talk freely about child care issues with peers and supervisors... Elder care is often a more private topic."*

This is the fourth article in a four-part series examining how good management basics can promote elder care/work balance.

"Managing elder care conflicts well is a subset of managing people well. To succeed, a manager needs to pay consistent attention to four elements of good management:

• Clear accountability for performance
• Open, honest, and on-going communication
• Job design flexibility, and
• Respect for privacy and confidentiality." *

With the increasing concern about protecting individual privacy, and, especially, curbing access to personal healthcare information that is stored electronically, we sought the opinion of an expert on this matter.

We interviewed Tom Mc Steen, President of Compliance Strategies, LLC, a professional services firm that assists organizations in developing and maintaining organizational compliance and ethics programs. Tom is also a licensed attorney in Minnesota, with a focus on health care regulatory and compliance issues.

This information should not be considered legal advice. When faced with this issue, please consult an attorney for a review of the unique facts and circumstances of your situation.

EC/WB: If the manager notices a problem in reduced productivity and has reason to believe it may be related to elder care stress (perhaps the manager has heard about it from another co-worker), how might the manager broach the topic without the employee feeling his or her privacy has been violated?

McSteen: The way you ask the question, it seems that the manager is already concerned about the employee's work performance. So, the manager needs to approach this situation as a manager, rather than simply as a concerned colleague or friend.

The manager should approach the employee privately and focus the discussion on the performance issues. It is appropriate for the manager to ask an employee about unplanned, frequent absences or tardiness as well as work performance.

In a situation such as this, a manager should avoid mentioning discussions the manager may have had with, or things the manager may have heard from, other employees about this employee's situation.

If the manager did not have concerns about work performance, then the manager is generally freer to raise the issue; the manager should be cautious even in that situation, however, as it is likely that work performance issues will arise, possibly by the employee expressing a concern that his/her focus on caring for a family member is affecting work performance. Because of the uncertainty in how this discussion might proceed, we generally advise clients to be respectful of employees' privacy, particularly on matters which employees generally expect a level of privacy.

EC/WB: What about HIPAA? What categories of organizations are included/excluded from these new regulations?

McSteen: On April 14, 2003, the first federal regulation of health care privacy went into effect. This regulation, known as the Privacy Rule, promulgated under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), requires health plans and health providers to protect the confidentiality of individually identifiable health information that they create, obtain, use, and maintain. The Privacy Rule does not impact employers directly, but it does directly affect group health insurance plans that employers offer as benefits to their employees. Specifically, the Privacy Rule requires the employer and the health plan to be "adequately separated" and prohibits the health plan from sharing employees' private health information with employers.

So for example, in the situation presented in Question No. 1, if the manager is curious about what might be causing the performance of this otherwise productive employee to slip, the manager may not satisfy that curiosity by accessing information in the employee's group health plan records, for example, to find out what doctors the employee might be seeing.

Managers should also be aware of state laws or regulations that might relate to employee privacy. Many states have extensive privacy laws and regulations that may affect the employer-employee relationship. It is important to think about both the HIPAA Privacy Rule and state laws and regulations when considering the privacy of an employee's health information.

EC/WB: What advice do you give to managers about how to appropriately raise discussion of this type of issue - in order to avoid a crisis situation that can result in an employee's leaving a position unnecessarily?

McSteen: As noted in no. 1, a manager with legitimate concerns about work performance should raise these concerns with an employee in the same manner as a manager would raise other concerns about work performance. A manager, as a matter of course, should always be prompt in responding to issues regarding employee work performance.

If the manager has reason to believe that elder care stress may be at issue, the manager should be aware of another federal law, the Family Medical Leave Act (FMLA), which requires employers to allow up to 12 work weeks of unpaid leave during any 12-month period for family medical issues, including to care for a parent with a serious health condition.

Thus, when approaching the employee, the manager may inquire as to whether there are family issues that are contributing to employee stress and work performance, and if so, consider offering the employee some time off from work.

Also, if the employee is hesitant to volunteer information about family matters, the manager might simply remind the employee that he or she may be entitled to unpaid leave under the FMLA. In fact, the FMLA requires employers to post a notice of employees' rights under the FMLA in a location where employees frequently visit and in language employees will understand.

Mr. McSteen may be reached at 651-253-5758 or tmcsteen@attbi.com.

This concludes our four-part series on the application of four management basics to dealing with issues of elder care/work balance. What did you think of this month's issue? Did you find the series helpful? Interesting? Do you totally disagree with this approach?

What do you think? Visit the Elder Care/Work Balance discussion group at http://groups.yahoo.com/group/bringingeldercarehome and let us know! .. .

John Paul Marosy
Editor and President,
Bringing Elder Care Home LLC

John Paul Marosy is the author of Elder Care: A Six Step Guide to Balancing Work and Family, available from Bringing Elder Care Home Publishing on line at www.bringingeldercarehome.com or by calling 508-854-0431.

"This is the most comprehensive guide I've seen so far for the difficult issue of balancing elder care with work duties. It lays out realistic care histories in a way that managers and employees can relate to."

- Christina L. O'Neill, managing editor, Worcester Business Journal, 4/14/99

This newsletter may be reprinted in whole or in part so long as the author, John Paul Marosy, is credited and the Web site address, www.bringingeldercarehome.com, is provided.