How to oversee practice staff’s appearance legally

A column about keeping your practice in good health

By — Posted May 7, 2012.

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A physician practice needs to tread carefully when regulating the look of its employees.

Policies delineating what is acceptable about hygiene, visible body modifications, hair and clothing will rarely get a practice into trouble if there is some flexibility. Rules governing physique are more likely to land a practice in hot water. Some businesses have argued successfully that hiring people with a certain physical appearance is a bona fide occupational qualification.

“Companies can include almost anything in a policy if they can define a legitimate business objective that leads to a safe and productive workplace environment,” said Hadley Roeltgen, counsel with Reger Rizzo & Darnall in Philadelphia. “The issue is when people put in the job description an appearance standard that does not. That could raise some problems.”

Consultants say it is important to have a policy, because a well-crafted one can make some issues easier to tackle. Most include a note that clothes should be clean. This may sound obvious, but lawyers say stating that proper hygiene is required can be a jumping-off point for uncomfortable conversations.

“It’s a lot easier to have the [body odor] conversation if you have that policy,” said Andria Ryan, a lawyer and member of the health care practice group at Fisher & Phillips in Atlanta. Odor may be caused by a lack of deodorant or too much perfume.

The first step when devising an appearance policy is to consider the goal. Does the practice have an older patient population that expects a more formal atmosphere? Or does it have a younger clientele that feels comfortable in a more casual environment? How will a new policy affect current employees? Will they be grandfathered in if their appearance somehow contravenes the new policy?

Also, what exceptions will be made for religious requirements or health needs? Some adaptability usually will be required to comply with the Americans with Disabilities Act or various nondiscrimination statutes, which vary by state.

Some practices prohibit tattoos and body piercings to be on view. Does this mean a piercing must be taken out? What is the acceptable way to cover a tattoo? Some can be covered with makeup. Others can hide under long sleeves.

“We do limit employees to no more than three piercings in the ear,” said Gregg Chadwick, CEO of Premier Medical Group, a multispeciality practice based in Bloomington, Ill. “Tongue piercings cannot be shown. We require tattoos to be covered and not visible to patients.”

What kind of clothing is acceptable? Premier has policies stating that dress should be professional but allows those who manage any one of its dozen offices to decide what that means. For example, some permit capri pants. Others do not.

Barbara O’Brien, vice present of human resources with Chesapeake Urology Associates, which has 16 offices in Maryland, opted for uniforms, because the business casual policy was being interpreted too broadly.

A first attempt at uniforms did not work. O’Brien said employees considered the clothes, which were picked from a catalog, to be low-quality. Buy-in was greater and morale improved when a committee of staffers from several parts of the company selected the clothes. Nonclinical employees have a choice of royal blue, a soft blue or a purple shirt, and they can wear a matching sweater. Staffers wear black slacks or a skirt. Clinical staff wear scrubs in matching colors.

“They didn’t mind wearing a uniform, but they wanted more input into what the uniform looked like,” O’Brien said. “They wanted something that was more flattering and better quality. They asked us to reconsider, and we did.”

The practice pays for the uniforms.

Citizens Medical Center in Victoria, Texas, set off an Internet firestorm in March when news broke that it would not hire people with a body mass index of more than 35 because of a desire to present a certain appearance to patients. On April 12, an advocacy group called the Obesity Action Coalition put out a news release stating that Citizens dropped the weight requirement. The medical center did not respond to requests for comment.

In Texas, as in most states, making hiring decisions on the basis of weight is legal — even if a job does not require physical work. However, attorneys say that, beyond any unintended worldwide publicity, regulating employees’ weight could result in legal problems. The ADA provides protection for people who are obese. Also, attorneys say weight restrictions could affect women and minorities disproportionately, which could trigger scrutiny from agencies enforcing state and federal nondiscrimination laws.

“We don’t have any policies regarding weight, and I don’t imagine that we would go down that road,” Chadwick of Premier Medical Group said.

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