I am a Responsible Employee. How do I fulfill my obligation?
When an individual discloses a possible incident of Prohibited Conduct, you should inform the individual that you are a Responsible Employee who must report any information the individual shared with you to OPHD. See Tips on Responding. As a Responsible Employee, you must contact OPHD as soon as possible and share whatever information you have, including the names of any individuals involved, their contact information, and any details of the incident. As a Responsible Employee, you should report to OPHD even if you are unsure that the incident actually occurred or whether it constitutes Prohibited Conduct.
If your job responsibilities ordinarily would require you to investigate a report of disruptive behavior or intervene or resolve the issue, consult with counsel before taking any steps to assure compliance with all applicable laws and policies.
How do I know when I am acting in my confidential capacity as a Confidential Resource and, therefore, am exempt from the Responsible Employee reporting duties?
An employee may act as a Confidential Resource in some contexts and not in others. It depends on whether the employee is acting in a confidential capacity when receiving a report of Prohibited Conduct.
Example 1: A CAPS counselor who receives a disclosure regarding racial harassment during a counseling session is acting in their confidential capacity and is exempt from reporting. However, if that same counselor receives a student disclosure about racial harassment while shopping in a campus bookstore, the counselor would not be receiving that disclosure in their confidential capacity and would have an obligation to report the disclosure to OPHD.
Example 2: UC employees who are licensed medical or mental health professionals (e.g., Student Health and Counseling center directors; medical school department chairs, deans, and faculty members; medical center department chairs, clinical service chiefs, and faculty) would be considered Confidential Resources if they received information about Prohibited Conduct in the context of providing care to a patient. However, outside of the patient care context, these individuals (and their supervisees) would not be Confidential Resources and would be subject to Responsible Employee reporting requirements.
Must I report Harassment, Discrimination, or Retaliation even when the conduct involves a patient?
Yes, if you learn the information in your role as a Responsible Employee, unless it was in the context of providing care to a patient. Consult the definition of “Confidential Resources” in the policies for exceptions relevant to licensed healthcare providers who learn information in connection with their treatment of a patient.
What happens when a student complains to the front desk staff at Health Services that a student sexually propositioned them?
The front desk staff did not receive the disclosure while helping the patient obtain care from a healthcare provider. Because the employee was not acting in their confidential capacity, they were a Responsible Employee rather than a Confidential Resource. They must report to OPHD and make an incident report with whatever details they have, such as names, dates, etc.
What if the disclosure was made to me outside the course of my work?
You are encouraged to still report it to OPHD as it enables the University to promptly address the conduct and connect the Complainant with resources.
What are my responsibilities as a member of the University community?
UC Merced expects every member of our community to be respectful of others and to help foster a safe environment free of discrimination, harassment, exploitation, and intimidation. Everyone at the university — students, faculty, academic appointees, and staff — has a responsibility to know and comply with the Sexual Violence and Sexual Harassment Policy, Anti-Discrimination Policy, Abusive Conduct in the Workplace Policy, codes of conduct, and relevant state laws. UC Merced expects everyone to take the mandatory training covering these areas.
If you are a Responsible Employee, you must promptly forward reports of discrimination, harassment, sexual violence and sexual harassment to OPHD. Want to know if you are a Responsible Employee or have questions about being a Responsible Employee? Contact OPHD by emailing ophd@ucmerced.edu.
Is the University required to investigate information regarding sexual violence incidents shared by survivors during public awareness events, such as “Take Back the Night”?
ResponsibEmployees are not required to report incidents that they learn of while attending public awareness events, such as “Take Back the Night,” ale nd the University is not required to open investigations based on statements made during such events.
Are reports to the UC Merced Police Department (UCMPD) confidential?
Under the SVSH and Anti-Discrimination policies, UCMPD are Responsible Employees with reporting obligations, with one exception. When a Complainant reports possible SVSH Prohibited Conduct to UMCPD, they may elect to keep their identity private. When they do, UCMPD cannot share the Complainant’s name, any identifying information, or contact details with OPHD. However, UCMPD must notify OPHD of the Complainant’s affiliation (student, faculty, staff), the Respondent’s information, and other relevant details. OPHD must respect the Complainant’s decision to keep their identity private.
Are Responsible Employees required to report disclosures about Prohibited Conduct (sexual violence and sexual harassment) received in the course of conducting Institutional Review Board–approved or certified exempt human subjects research?
Responsible Employees are not required to report disclosures of Prohibited Conduct made by someone when participating in human subjects research that has either been approved by an Institutional Review Board (IRB) or certified as exempt from IRB review under one or more of the categories in 45 CFR 46.104. When conducting research that is designed, or likely, to elicit information about sexual violence or sexual harassment, researchers are strongly encouraged to provide information about University and community resources to research participants.
Disclosures of incidents of alleged Prohibited Conduct made during a person’s participation as a subject in an IRB–approved or certified exempt human subjects research protocol will not be considered notice to the University for purposes of triggering its obligation to investigate. The reporting exemption that this section describes (for disclosures made by a person when participating in IRB-approved or certified exempt human subjects research) does NOT apply to disclosures made to research personnel outside of the course of the research protocol (for example, to faculty during office hours or while providing academic advising).
This reporting exemption does not affect mandatory reporting obligations under federal, state, or local laws, such as the Clery Act and the California Child Abuse and Neglect Reporting Act (CANRA), and other policies or laws that require reporting to campus or local law enforcement, or Child Protective Services.
Does the Health Information Portability and Accountability Act (HIPAA) preclude reporting OPHD as a Responsible Employee when the conduct involves a patient? What if the relevant information is subject to additional privacy protections (e.g., mental health, substance abuse, communicable diseases)?
In general, health and medical privacy laws, like HIPAA, do not preclude reporting to OPHD when the alleged conduct involves a patient. Pursuant to the University’s systemwide HIPAA Administrative Requirements Policy, OPHD is considered a part of the University’s “covered component,” and, as such, is subject to HIPAA’s regulations and the University’s systemwide HIPAA policies. See HIPAA Administrative Requirements Policy at pp. 2-3.
As a part of the covered component, OPHD personnel must be trained on systemwide HIPAA policies and any relevant local procedures necessary to perform their assigned job functions. In addition, they must take appropriate measures to protect the privacy of protected health information (PHI), in any form.
If you have any concerns about disclosing PHI or information subject to additional privacy protections to OPHD without the written authorization of the Complainant or Respondent, seek guidance from legal counsel or HIPAA privacy officer. While you await guidance, the incident should be reported to OPHD in an anonymized manner that protects the identity of the patient.
