SAY WHAT YOU WANT? MAYBE NOT IN THE PHARMACY
“My employer tells me how to answer the phone.” “My boss tells me to use certain words when I make the offer to counsel.” “I got written up for discussing religion with a customer.” “I was threatened with termination for voicing my opinion about the governor’s race.” “My employer tells me to lie to patients with X insurance because we lose money on a lot of its prescriptions.”
Do pharmacists have the right of freedom of speech in the workplace? And if not, just how far can employers go in infringing/abridging that right? The short answer is that employers may abridge/infringe on that right in the workplace.
A little civics lesson first. Constitutional rights are not rights granted by the government. Check the wording of the Bill of Rights: “Congress shall not….” These rights already exist in some form; the Constitution merely prohibits the government from abridging those rights. AND it turns out, when there is a compelling interest, the government may make a case and infringe upon rights. You cannot utter words that constitute “a clear and present danger” (Justice Holmes) or create “an imminent danger of imminent harm.” In short, if the government can come up with a good (compelling) reason to abridge free speech, it can do so.
So can employers. The Constitution is a restriction on government, not employers. And employers need only a rational basis, not a compelling interest, to abridge speech in the workplace. However, it is not absolute. Employers can usually prohibit speech that: 1) can harm the reputation of the business, 2) causes economic harm to the business, and 3) causes offense to the usual and customary clientele of the business.
Example of 1) Employers can prohibit employees from speaking to patients or others about an impaired pharmacist discovered working at another location.
Example of 2) Employers can limit speech about products in the store to positive elements of those products
Example of 3) Employers can tell employees they may not voice derogatory comments about the Medicaid population
To show that employer prohibitions are not absolute, Example 2) is not enforceable when a not-so-positive element of an in-store product could be detrimental to the patient’s health. The pharmacist may then discuss product negatives with no fear of discipline or termination.
But this issue is not clear-cut, no matter how much PLS or other commentators try to make it. The gray area is much greater than the black and white. An example often encountered is political speech. Most employers ban political speech in the workplace. Some pharmacists pretend to agree with whoever is speaking, others just smile and nod, others yet will refuse to comment as it is against company policy. But a number of employers these days ban political speech by employees but express their own views. Since it is the employer’s store, can she do this? If this is in the employee handbook and explained that is the situation at the time of hiring, it may well be legal. But what if it is an “ELECT SO-AND-SO FOR THIS” sign in the pharmacy? Does the pharmacist have a right to at least dissociate from candidates she does not support? Can the pharmacist hang another sign or wear a button featuring an opposing candidate? Depending on the circumstances, the answer to these questions could either be “yes” or “no.”
As to specific phrasing for answering the phone or offering to counsel, employers have usually conducted research and communicated with legal counsel to determine language that meets the law, is inviting to patients, and is as unoffensive as possible. Unless pharmacists can find a foundation for variation based on the exceptions listed below, employer designed language can be required.
As to lying to patients, this is a growing issue in the profession. The basis for this is that ogre of the industry: shrinking reimbursement. A number of medications are not reimbursed by third party plans to the price paid for the drug, much less cost plus dispensing fees, much less making any profit. Many employers tell their pharmacists to lie to the patient and say that the medication is unavailable, rather than saying the pharmacy will not stock it as it loses money every time it is dispensed. Pharmacy employers do not want patients to get the idea that it is profit over health care.
So, pharmacists are told to lie about drug availability. Like above, this issue is not clear-cut. Pharmacist should not lie; if they are caught in a falsehood, this harms the reputation of the pharmacy and the pharmacist. At the same time, in the current environment of politicians and people seeking universal healthcare, many balk at the concept of profit over health care. Bad publicity from refusing to accommodate a patient by purchasing the drug and taking the loss is likely to result. Pharmacists should tread carefully here.
When may an employer NOT abridge a pharmacist’s right to speech? 1) In any situation where pharmacy or drug law applies; 2) where the pharmacist’s professional judgment should dictate her words; 3) in any situation where patent health and safety are concerns. Employers almost always temper policies—regarding speech as well as others—by stating the policy is not to be followed if applicable law states otherwise. Similarly, patient health and safety issues are almost always left to the pharmacist. However, professional judgment is being questioned more and more. “In my professional opinion” is being argued more often, usually by supervisors who are also pharmacists. Bottom line here: the dispensing—thus the responsible–pharmacist should stick to her guns and not bend to another’s opinion.
A direct result of shrinking reimbursement and the pharmacist glut is that employers have the upper hand currently in how pharmacies are run. This includes controlling the speech uttered by pharmacists in the workplace (and out. Derogatory speech made to others about employers at social functions or on social media has been found to be actionable for employers). Pharmacists do owe employers a modicum of loyalty and a duty to follow legal and sensible policies designed to protect and/or build business. At the same time, restrictions on speech in the workplace must be scrutinized to respect applicable law and professional responsibilities as seen by the pharmacist.
The chain pharmacies fear “bad press” or “bad word of mouth” … The “service” that you are provided may be part reality… part illusion or mirage at the pharmacy counter. Unless your insurance has you locked into a particular pharmacy… you are going to pay the same price at any store so any “bad press” could cause pts to move their prescription(s) to a competitor.Filed under: General Problems
Leave a Reply