Protecting your practice while optimizing remote employees.
By Joe DeLoach, OD, FAAO
Sept. 20, 2023
Recently, Chad Fleming, OD, FAAO, wrote an excellent article about his personal experience with remote staffing. Be sure to refer back to his article! As a compliance expert, I have been asked to provide additional information regarding the legal ins and outs of remote staffing.
To start, let’s attempt to define the various categories of folks who do not work within the four walls of your office.
Dr. Fleming was on point referring to all these different staffing positions as remote. The term virtual has also gained popularity. One of Webster’s definitions of virtual includes “occurring or existing primarily online.” Fitting, but if applicable, may define most of our lives. In reality, the terms may be interchangeable, but I prefer remote. The real issue is the nature of the relationship with the remote worker. We currently have three options – an employee of the practice, an employee of a staffing agency or an independent contractor arrangement. The legal human resources issues for these three options are very different. The privacy and security obligations are no different.
Human Resource Issues to Consider When Working with Remote Staff
A remote worker inside the U.S. can clearly be an employee of the practice. Whether they work remotely across the street or in another state, the legal obligations surrounding that relationship are no different from the employee clocking in at your address. The policies in your employee manual apply the same to these employees, though some issues, such as monitoring hours, surveillance and some benefits issues, can vary. Remember, there can be exceptions to that relationship if the remote employee is in a different state as the remote state’s HR laws can come into play.
Overseas Employees
For overseas employees, U.S. labor laws do NOT apply. The employee’s rights are whatever exists in their country, a potential sticking point. Employee laws in foreign counties can be distinctly different from those in the U.S. Key differences include significant employee tax liabilities, overtime laws, mandated time off and restrictions on hours worked per day. Many countries require that for you to employ someone in that country you must be registered as a legal entity – IN THAT COUNTRY. Failure to comply with local employment laws in a foreign market will result in significant penalties and fines. It is not advisable to hire overseas employees on your own – definitely work with a reputable staffing agency that has legal status in the overseas employee’s country and knows the legal obligations of that relationship.
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Independent Contractors
That leaves the option of independent contractor status. Classification of independent contractor status in the U.S. is very technical and becoming highly scrutinized by Washington. In general, it is almost never applicable to staff positions in a healthcare office. In foreign countries, you must be clear on the legal obligations of their laws regarding independent contractor status. These common laws vary from country to country and can be very grey. Even the Philippines, considered one of the most employer-friendly countries, has specific laws related to independent contractor classification and relationships with them. In Mexico, misclassification can result in fines as high as 5,000 times the minimum wage. In a word…beware! There are also specific regulations and forms issued by the IRS that must be followed.
Best advice?
I would avoid foreign independent contractors. Choose this option only upon the counsel of an international tax or human resource attorney. Seek out a company that is a true staffing agency. The employee works for them and they know and follow the laws of the countries where their employees live. They provide a legal staffing relationship with you while taking care of all employee obligations. This relationship is the simplest alternative and checks off the most “legal” boxes.
Privacy and Security Issues
Here is where the law is no different. Whether handling patient information in Idaho or Brazil, the covered entity has the same legal obligation to protect patient privacy. Inside your office, you definitely have more direct control over privacy issues – staff are working with YOUR computers, your network and under your privacy policies. When dealing with overseas workers, you must go above and beyond to ensure their workstations are secure and the remote connections utilized are all HIPAA compliant. Supplying their devices and especially specific software, internet and remote connection provides you the most control.
Most companies will tell you they have trained these workers in HIPAA, but it is important that you train them on YOUR privacy and security policies. Technology has certainly made all this possible, but once again, the staffing agency can be helpful with mandating and monitoring privacy standards as well as remote worker training. Definitely work with your compliance company and IT consultant on this!
The use of remote workers can offer many benefits to your practice. Make sure those relationships are completely compliant with U.S. and foreign employment laws and that everything focuses on maintaining the privacy of patient information.
Joe DeLoach, OD, FAAO, is a Clinical Professor at the University of Houston College of Optometry and CEO of Practice Compliance Solutions. To contact: : joe@practicecompliancesolutions.com
