Dental Facilities & Staffing

Dentist employers are required to provide and pay for Hepatitis B vaccinations for all employees who may in the course of their employment, be exposed to blood and other potentially infectious materials.  The vaccination must be available after the employee has received training, but within ten (10) days of initial assignment.  This requirement may be waived in writing by the employee. 

            Every dental office is required to have an exposure control plan and to provide annual training.

Every licensee must notify the NJ State Board of Dentistry by mail or electronic means no later than thirty (30) days following a change of address.  Failure to do so could result in a disciplinary penalty. 

If a licensee ceases to engage in the practice of dentistry, the following steps must be taken:

• Patient Records: A procedure must be established by which patients may obtain treatment records or agree to the transfer of those records to another licensee who is assuming the responsibilities of the dental practice.  If the practice will not be attended by another licensee, a notice of the cessation of practice and procedure for the retrieval of records must be published in a newspaper of general circulation in the geographic location of the licensee’s practice, at least once each month for the first three months after the cessation.  In addition, a notice must be filed with the State Board of Dentistry setting forth the established procedure for the retrieval of records, and reasonable efforts must be made to directly notify any patient treated the six months preceding the cessation of the practice to provide information concerning the established procedure for retrieval of records.  Finally, a notice must be posted conspicuously on the premises of the procedure for the retrieval of records.

•  X-Ray Disposition Form
• Regulated Medical Waste: Provide written notification to the Department of Environmental Protection about the cessation of practices.
•  Disposal of Controlled Dangerous Substances

The New Jersey State Board of Dentistry establishes, by regulation, those duties that lawfully may be delegated to auxiliary personnel.  The State Board repeatedly has stated that if a duty, service or procedure is not expressly listed, it cannot be performed. 

            As of October 6, 2012, licensed dental hygienists may perform duties under general supervision (known as supervision in the new law) as opposed to under the direct supervision of a dentist.

Some key provisions of the new law include:

• It is in the sole discretion of the dentist to allow or not allow dental hygienists to practice when the dentist is not physically present in the office. 

  
  

• The general supervision of dental hygienists (known as “supervision” under the NJ Statutes) in a dental office must be authorized in writing by the dentist, who assumes full professional responsibility whether or not the dentist is physically present.

  
  

• A dental hygienist practicing under general supervision must hold current certifications in basic or advanced cardiac life support.

  
  

• Dental hygienists may perform hygiene services only on patients of record.

  
  

• No more than three dental hygienists may be supervised by any one dentist at a time.

  
  

• Proper emergency equipment, as may be required by the New Jersey State Board of Dentistry, must be readily available in the dental office that allows the general supervision of dental hygienists. (Note: At present, none are required.)

  
  

• Dental hygienists may take radiographs under general supervision if allowed in writing by the dentist.

  
  

• Dental hygienists cannot administer local anesthesia, perform other anesthetic procedures, or monitor nitrous oxide unless a dentist is physically present.

  
  

• Within the scope of their practice, dental hygienists may treat patients at any appropriately equipped school, clinic or institution, including nursing homes, veterans’ clinics, hospitals, prisons and facilities that treat persons with developmental disabilities.

  
  

• Dental hygienists cannot perform intra-oral services in a school setting on a person except for administering preventive measures, such as the application of fluorides, sealants and other recognized topical agents designed to prevent oral disease or discomfort, unless the dental hygienist reasonably believes that the person has been examined by a dentist within the immediately preceding 365-days.

  
  

• Only a New Jersey licensed dentist may diagnose, treat or perform any surgical or irreversible procedures pertaining to the dental condition of the treatment of a person and bill or receive payment for dental services.

  
  

• The law clarifies that dental hygienists may not own an independent office or practice.

Please find a sample “Written Work Order Allowing General Supervision” within a dental office on page XX

X-Ray Technicians

            Persons other than dentists and dental hygienists licensed in New Jersey are required to obtain a certificate from the Radiologic Technology Board of Examiners as a precondition to taking dental radiographs.  Information can be obtained from the Technologist Education and Licensing Section of the New Jersey Department of Environmental Protection.  Dentists and dental hygienists licensed in New Jersey are authorized by law to take dental radiographs and, therefore, are exempt from being certified as a radiologic technologist.

Employment

            New Jersey is an “employment at will” state, meaning that absent an agreement, express or implied, an employer may terminate an employment relationship at any time for any or no reason, with or without cause, as long as the termination does not violate a clear mandate of public policy (e.g., age, gender, race or religion or disability discrimination), the Fair Labor Standards Act, or any other applicable statute or regulation.  In the event of a termination, an employer may wait until the next regular payday designated for the pay period to issue payment to the employee regardless of whether the employee quit or was fired.   For more information on properly terminating an employee call the NDJA.

Independent Contractors

            Effective September 19, 2005, the regulations governing the practice of dentistry were amended to provide as follows: “Dentists may provide professional services in connection with a permissible dental practice as independent contractors provided the arrangement complies with all State and Federal laws.”

The New Jersey Department of Labor applies the following law, the three part (ABC) test, to determine whether or not an individual who provides a service for wages is an employee or an independent contractor under New Jersey’s unemployment and disability insurance law.

          “Services performed by an individual for remuneration shall be deemed to be employment . . . unless and until it is shown to the satisfaction of the division [of unemployment and temporary disability insurance of the Department of Labor of the State of New Jersey] that:

Part A             

• Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and,

Part B

• Such service is either outside the usual course of the business for which service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and,

Part C

• Such individual is customarily engaged in an independently established trade, occupation, profession or business.”

 

            Analysis of ABC Test

 

Under Part A, if you supervise a worker, establish set hours or deadlines or methods of job completion, or you exercise control and direction over the activities of the worker, you make that worker your employee.

Under Part B, if a worker is performing a service within the usual course of your business or at your work location, the worker should be considered your employee.  For example, if you were a carpenter and hired another carpenter to work with you on a job, that worker would be your employee.

 

Under Part C, to be considered an independent contractor, a worker must be regularly engaged in a trade, business or occupation that would continue to exist if the relationship with you were terminated.  Independent contractors normally have business equipment, advertise, submit invoices for services, and perform services for a number of customers.  If all or most of a worker’s income comes from one source, however, that worker is usually considered an employee.

In evaluating whether a person is an independent contractor, the division will consider at least the following factors:

• the duration and strength of the business of each individual
• how many customers each alleged independent contractor has and their respective volume of business
• how many employees work for each alleged independent contractor
• the business location of the alleged independent contractor
• extent of tools, equipment, vehicles or other similar resources dedicated to the operation of the individual trade
• the amount of remuneration received by the alleged independent contractor from each customer
• the business tax return filed by each alleged independent contractor

If individuals working for you are employees under these criteria, you should begin withholding employee contributions and report these workers as employees for New Jersey unemployment, temporary disability and workforce development subsidy fund purposes.

Parenthetically, the New Jersey State Board of Dentistry has taken the position that fees cannot be shared or “split” between a dentist and an independent contractor, but can be shared or split between a dentist and an employee.

For more information about unemployment and temporary disability insurance call the New Jersey Department of Labor.

Wage and Hour Compliance

            With limited exception, all employers must pay wages to all employees at least twice a month.  As of January 1, 2015, the minimum wage in New Jersey was $8.38 per hour. 

            Overtime is paid at the rate of time and one half after forty (40) hours of actual work in a seven-day workweek, with the exception of certain salaried employees who meet the definition of executive, administrative or professional.  An employer can require an employee to work overtime and is not obligated to pay overtime or double time for working on a holiday, Saturday or Sunday.  An employee cannot waive his or her right to overtime pay and an employer and employee cannot mutually agree to waive overtime pay. 

            Employers are not required by law to pay benefits (vacation, sick, severance, holiday pay or any type of benefits).  Moreover, New Jersey State law does not require employers to pay employees for time not actually worked, like snow days.  An employee must be given time off for jury duty, but there is no requirement for the employer to compensate the employee for that time.  An “Employer Handbook” is available upon request from the New Jersey Department of Labor.

Workers Compensation

            All New Jersey employers are required by law to provide workers compensation insurance for their employees, regardless of number.  Although such coverage is available from many sources, the New Jersey Dental Association has endorsed a workers compensation plan that is underwritten by the Meadowbrook Insurance Group.  To visit the New Jersey Division of Workers Compensation website

OSHA – Occupational Safety and Health Administration

            OSHA is a federal agency that implements and enforces regulations dealing with workplace safety.  Its purpose is to protect employees.  Regulations involving dental offices frequently pertain to infection control and bloodborne pathogens, but may also include subjects such as building and equipment, injuries and recordkeeping, the identification and labeling of hazardous chemicals, staff training and medical waste disposal.  OSHA inspectors respond to complaints filed by employees and other members of the general public, such as patients.  While many of the complaints may be handled by correspondence, certain major complaints, including those made by a current or former employee, might prompt an unannounced office inspection.  Dentist-employers are subject to compliance with OSHA regulations.

            The American Dental Association has prepared an OSHA Compliance Kit which provides valuable information to assist dentist-employers in complying with OSHA regulations.   It is available for purchase from the ADA by calling (800) 621-8099 or visiting the ADA website at www.ada.org.

           

Bloodborne Pathogens and Hepatitis B Vaccinations

            Dentist employers are required to provide and pay for Hepatitis B vaccinations for all employees who may in the course of their employment, be exposed to blood and other potentially infectious materials.  The vaccination must be available after the employee has received training, but within ten (10) days of initial assignment.  This requirement may be waived in writing by the employee. 

            Every dental office is required to have an exposure control plan and to provide annual training.

Laws Pertaining to Civil Rights and Disabilities

            Dentists’ offices almost always qualify as places of public accommodation and fall under the jurisdiction of the New Jersey Division of Civil Rights and Title III of the federal American’s with Disabilities Act (AwDA).  The two laws prohibit discrimination against people with disabilities in employment and access to services and programs offered by both the public and private sectors.  A person is disabled under the AwDA when he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment. 

            Listed in the AwDA are the following types of diseases or disorders that qualify as an impairment (this is not a complete list): orthopedic, visual, speech and hearing impairment, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, drug addiction, tuberculosis, HIV disease and alcoholism.  Mental or psychological disorders noted in the AwDA include mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities.

            Dentists must take steps at their own expense to ensure that persons with disabilities are not denied services or treated differently because of the difficulty in providing auxiliary aids and services unless it can be shown that taking those steps would result in an undue burden or fundamentally alter the nature of the services provided.  Examples of auxiliary aids include interpreters, signers, assistive listening devices, note-takers, telephone headset amplifiers and written material when necessary to communicate effectively with persons who have hearing impairments.

            Accessibility Standards for access to the dental office can also be found at ada.gov under the Design Standards tab. 

            The American Dental Association has produced a booklet that fully explains the AwDA requirements and provides answers to many questions.  It can be obtained by calling the ADA at (800) 621-8099 and asking for salable products.

New Jersey is an “employment at will” state, meaning that absent an agreement, express or implied, an employer may terminate an employment relationship at any time for any or no reason, with or without cause, as long as the termination does not violate a clear mandate of public policy (e.g., age, gender, race or religion or disability discrimination), the Fair Labor Standards Act, or any other applicable statute or regulation.  In the event of a termination, an employer may wait until the next regular payday designated for the pay period to issue payment to the employee regardless of whether the employee quit or was fired.   For more information on properly terminating an employee call the NDJA.

Effective September 19, 2005, the regulations governing the practice of dentistry were amended to provide as follows: “Dentists may provide professional services in connection with a permissible dental practice as independent contractors provided the arrangement complies with all State and Federal laws.”

The New Jersey Department of Labor applies the following law, the three part (ABC) test, to determine whether or not an individual who provides a service for wages is an employee or an independent contractor under New Jersey’s unemployment and disability insurance law.

          “Services performed by an individual for remuneration shall be deemed to be employment . . . unless and until it is shown to the satisfaction of the division [of unemployment and temporary disability insurance of the Department of Labor of the State of New Jersey] that:

Part A             

• Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and,

Part B

• Such service is either outside the usual course of the business for which service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and,

Part C

• Such individual is customarily engaged in an independently established trade, occupation, profession or business.”

 

            Analysis of ABC Test

 

Under Part A, if you supervise a worker, establish set hours or deadlines or methods of job completion, or you exercise control and direction over the activities of the worker, you make that worker your employee.

Under Part B, if a worker is performing a service within the usual course of your business or at your work location, the worker should be considered your employee.  For example, if you were a carpenter and hired another carpenter to work with you on a job, that worker would be your employee.

 

Under Part C, to be considered an independent contractor, a worker must be regularly engaged in a trade, business or occupation that would continue to exist if the relationship with you were terminated.  Independent contractors normally have business equipment, advertise, submit invoices for services, and perform services for a number of customers.  If all or most of a worker’s income comes from one source, however, that worker is usually considered an employee.

In evaluating whether a person is an independent contractor, the division will consider at least the following factors:

• the duration and strength of the business of each individual
• how many customers each alleged independent contractor has and their respective volume of business
• how many employees work for each alleged independent contractor
• the business location of the alleged independent contractor
• extent of tools, equipment, vehicles or other similar resources dedicated to the operation of the individual trade
• the amount of remuneration received by the alleged independent contractor from each customer
• the business tax return filed by each alleged independent contractor

If individuals working for you are employees under these criteria, you should begin withholding employee contributions and report these workers as employees for New Jersey unemployment, temporary disability and workforce development subsidy fund purposes.

Parenthetically, the New Jersey State Board of Dentistry has taken the position that fees cannot be shared or “split” between a dentist and an independent contractor, but can be shared or split between a dentist and an employee.

For more information about unemployment and temporary disability insurance call the New Jersey Department of Labor.

Information on State and Federal Posting Requirements and the links to FREE on-line posters can be found on the NJDA website under the Dental Office Procedures and Regulations tab in the Members Only section.

Dentists’ offices almost always qualify as places of public accommodation and fall under the jurisdiction of the New Jersey Division of Civil Rights and Title III of the federal American’s with Disabilities Act (AwDA).  The two laws prohibit discrimination against people with disabilities in employment and access to services and programs offered by both the public and private sectors.  A person is disabled under the AwDA when he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment. 

            Listed in the AwDA are the following types of diseases or disorders that qualify as an impairment (this is not a complete list): orthopedic, visual, speech and hearing impairment, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, drug addiction, tuberculosis, HIV disease and alcoholism.  Mental or psychological disorders noted in the AwDA include mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities.

            Dentists must take steps at their own expense to ensure that persons with disabilities are not denied services or treated differently because of the difficulty in providing auxiliary aids and services unless it can be shown that taking those steps would result in an undue burden or fundamentally alter the nature of the services provided.  Examples of auxiliary aids include interpreters, signers, assistive listening devices, note-takers, telephone headset amplifiers and written material when necessary to communicate effectively with persons who have hearing impairments.

            Accessibility Standards for access to the dental office can also be found at ada.gov under the Design Standards tab. 

            The American Dental Association has produced a booklet that fully explains the AwDA requirements and provides answers to many questions.  It can be obtained by calling the ADA at (800) 621-8099 and asking for salable products.

OSHA is a federal agency that implements and enforces regulations dealing with workplace safety.  Its purpose is to protect employees.  Regulations involving dental offices frequently pertain to infection control and bloodborne pathogens, but may also include subjects such as building and equipment, injuries and recordkeeping, the identification and labeling of hazardous chemicals, staff training and medical waste disposal.  OSHA inspectors respond to complaints filed by employees and other members of the general public, such as patients.  While many of the complaints may be handled by correspondence, certain major complaints, including those made by a current or former employee, might prompt an unannounced office inspection.  Dentist-employers are subject to compliance with OSHA regulations.

            The American Dental Association has prepared an OSHA Compliance Kit which provides valuable information to assist dentist-employers in complying with OSHA regulations.   It is available for purchase from the ADA by calling (800) 621-8099 or visiting the ADA website at www.ada.org.

To assist practitioners in identifying and addressing the matters related to starting a dental practice, the American Dental Association has published informative volumes available for purchase. However, there are specific New Jersey laws and regulations governing forms of practice and prohibited business practices.  

With limited exception, all employers must pay wages to all employees at least twice a month. As of January 1, 2015, the minimum wage in New Jersey was $8.38 per hour. 

            Overtime is paid at the rate of time and one half after forty (40) hours of actual work in a seven-day workweek, with the exception of certain salaried employees who meet the definition of executive, administrative or professional.  An employer can require an employee to work overtime and is not obligated to pay overtime or double time for working on a holiday, Saturday or Sunday. An employee cannot waive his or her right to overtime pay and an employer and employee cannot mutually agree to waive overtime pay. 

            Employers are not required by law to pay benefits (vacation, sick, severance, holiday pay or any type of benefits).  Moreover, New Jersey State law does not require employers to pay employees for time not actually worked, like snow days. An employee must be given time off for jury duty, but there is no requirement for the employer to compensate the employee for that time. An “Employer Handbook” is available upon request from the New Jersey Department of Labor.

All New Jersey employers are required by law to provide workers compensation insurance for their employees, regardless of number. Although such coverage is available from many sources, the New Jersey Dental Association has endorsed a workers compensation plan that is underwritten by the Meadowbrook Insurance Group. To visit the New Jersey Division of Workers Compensation website

Persons other than dentists and dental hygienists licensed in New Jersey are required to obtain a certificate from the Radiologic Technology Board of Examiners as a precondition to taking dental radiographs. Information can be obtained from the Technologist Education and Licensing Section of the New Jersey Department of Environmental Protection. Dentists and dental hygienists licensed in New Jersey are authorized by law to take dental radiographs and, therefore, are exempt from being certified as a radiologic technologist.