STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

CRYSTAL L SCHILLINGER, Employee

MARSHFIELD CLINIC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06201166AP


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 13 of 2006, if otherwise qualified.

Dated and mailed November 2, 2006
schilcr . usd : 115 : 8   MC 687

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee worked 6.5 years for the employer, a health care provider, most recently as an appointment coordinator in the neurology department.

The employee had reason to be aware of the employer's policies through her initial employee orientation and subsequent training.

The employer's "Employee Conduct" policy (exhibit #2) states in section 4.2 D. that divulging or accessing confidential information without a legitimate need to know was prohibited and subjected the violator to disciplinary action up to and including termination. Section 4.2 E. provides that failure to follow the Employee Conduct policy "may result in corrective action;" corrective action for staff "may take the form of (1) verbal warning; (2) written warning; (3) suspension without pay; and/or (4) termination;" and "[d]epending upon the conduct or policy violation, disciplinary measures up to and including termination may result."

Section 5.1.3 of the employer's "Patient Information Confidentiality" policy (exhibit #3) states that employees "found in violation of this policy are subject to disciplinary action up to and including immediate termination," and refers the reader to the employer's Employee Conduct policy.

The employer performed an audit of the employee's access of confidential medical records. This audit revealed that the employee had accessed such records more than 70 times. The employee's supervisor met with her to determine her reasons for accessing such records. The employee was unable to offer reasons for most of these incidents because she could not remember them, but did admit that she accessed her grandmother's records to obtain a telephone number, and accessed the records of her neighbor, her neighbor's baby, and the baby's father in order to determine whether and when the baby had been born. The employee had occasion to access confidential medical records on occasion as part of her assigned work responsibilities.

The commission agrees with the administrative law judge that the employer proved that the employee improperly accessed confidential medical records on only four occasions.

The commission has been consistent in holding, except in those cases in which the alleged conduct is sufficiently egregious, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that her job is in jeopardy or will be if she engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Munoz v. LaCosta, Inc., UI Hearing No. 02607640MW (LIRC April 4, 2003). Here, although the employee had reason to be aware that accessing confidential medical records for personal reasons violated the employer's policies, she did not have reason to be aware that doing so on these four occasions would lead to her immediate termination. The employer's Patient Information Confidentiality policy, although implying in section 5.1.3 that certain violations could lead to immediate termination, incorporates the progressive discipline scheme set forth in the employer's Employee Conduct policy, conveying the message that most violations would be addressed through progressive discipline.

The remaining question, then, is whether the subject conduct was sufficiently egregious to relieve the employer of its responsibility to make the employee aware that her job would be in jeopardy if she engaged in it.

Even taking into account the responsibility a health care provider has to strictly limit access to confidential patient records, and the potential consequences for failing to effectively meet this responsibility, the employee's access of her grandmother's records to obtain a telephone number, and of her neighbor's/neighbor's baby/baby's father's records to determine whether and when the baby had been born, would reasonably be regarded as relatively minor infractions deserving of some level of discipline, but not immediate termination.

The employer argues in its petition that any violation of its patient information confidentiality policy should be considered misconduct. However, this is not what that policy states. Instead, that policy incorporates the employer's progressive discipline scheme, and implies that only certain violations, presumably the most egregious ones, would result in immediate termination.

Finally, the employer references an apparently contrary result reached by the department in regard to a claim of another of its former employees. Although both the department and the commission strive for a consistent application of the law, the results in these two matters rest on different evidentiary records.



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uploaded 2006/11/06