Two lively young women work as aides in a nursing home. One evening, as they are preparing a resident for bed, they start goofing around, and one of them takes a video of the other, with the bewildered resident in the background. Then, as young people so often do, they post the video on Instagram. A viewer alerts the nursing home. Now what should happen to these employees?
The correct legal response is, termination. Although the resident was not physically harmed, and this was not malicious, it was a clear violation of HIPAA, and the employees knew this very well. They don’t deserve to continue to work at this facility, and residents are safer without them.
But then what happens? The young women apply to work at another facility, disguising the fact of, or at least the reason for, their previous termination. They speak ill of their former employer to anyone who will listen, because they’re bitter about being fired for what they consider to be a minor offense. Meanwhile, the facility hires new workers, who may be tempted to make the same mistake as their predecessors.
Could there be a better outcome?
What if the employer slowed down the response? What if the employees were suspended, instead of terminated, while everyone figured out next steps? What if the young women, when confronted with the enormity of their actions, were asked what they thought would be an appropriate response? What if the resident and family were consulted on what response they’d like to see—and could express their pain to the offenders if the employees still thought it was “no big deal”? What if this incident were viewed as an opportunity for education as well as punishment?
If one goal is to impress on these young people the dangers of social media, job loss makes a big impression. But there are other ways to make that impression: what if they had to acknowledge publicly what they did? Another goal is to remind all staff that HIPAA violations are taken seriously; firing an employee is one way to do that, but there are other ways: what if the offending employees had to give a workshop on the stupidity of posting videos of residents, especially ones who could not consent? Might that be more powerful than hearing it from supervisors? Might it make a stronger impression on the offending employees?
What if the offenders were encouraged to consider whether they were remorseful enough to apologize to the resident and family, as well as to staff, and maybe even other residents? That too could make a powerful impression on the offenders, while allowing the incident to be acknowledged instead of hushed up. And it would allow some relational closure, with the residents and with other staff, that immediate termination prevents.
Termination is always an option; but what if it were the secondary option instead of the first?
My relative was the resident in the video. The employees were fired immediately. But I’m left to wonder: could there have been a better outcome?
