Advice and action for a maze of medical rules
Can an employer call an employee’s doctor to ask about the documentation for an employee’s request for intermittent leave? Can the employer email the employee’s doctor with questions about the accommodation a disabled employee has requested?
“The answer is that employers — under a variety of different laws — can’t ask an employee’s doctor any questions that they can’t ask the employee,” said Robert Dustin, an employment and disability law attorney with Saul Ewing LLP in Washington, D.C. In other words, an employer can’t do indirectly what it can’t do directly.
Employers need to be aware of how their inquiries — which might involve the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), workers’ compensation, and short-term and long-term disability (STD and LTD) — interact with the privacy guarantees of the Health Insurance Portability and Accountability Act (HIPAA) and the Genetic Information Nondiscrimination Act (GINA).
HIPAA and GINA
Any question that an employer poses to a health care provider about employee medical information is subject to the HIPAA privacy rule, which controls when a covered entity — healthcare providers and healthcare plans — may disclose health information. A covered entity can’t give the employer any protected health information without having a signed HIPAA release from the employee. (This point is reiterated in a final rule published in the Jan. 25, 2013, Federal Register, which clarifies the definition of information “breach” under HIPAA by jettisoning a so-called “harm standard” and replacing it with a more objective four-part standard).
Additionally, GINA, which prohibits employers from discriminating against employees on the basis of genetic information, generally prohibits employers from requesting or acquiring an employee’s genetic information.
Under the ADA, an employer may ask employees about a disability only if the questions are job-related and consistent with business necessity. This means that the employer may seek information about when it has a reasonable belief that the employee will be unable to perform the essential functions of his or her job because of the medical condition or the employee will pose a direct threat because of the medical condition.
The ADA does not expressly prohibit direct questions to health care providers about employees’ medical information, but providers are restricted by HIPAA on what information they may divulge.
“There’s nothing in the law that prevents you from asking, but you won’t get the doctor to answer without a release from the employee,” said Dustin, “and if the employee says no to the release of information, there’s really no way to get the information.”
Action step: Ask the employee to sign a HIPAA release before calling the health care provider.
The FMLA has some very specific regulations that expressly prohibit — in most cases — an employer from getting information directly from the employee’s doctor even if the employee consents and signs a HIPAA release.
The regulations provide that an employer may contact the health care provider only when the information on the employee’s FMLA certification form needs clarifying and only after giving the employee a chance to complete or clarify the form. Only an HR professional, a leave administrator or a management official may make the request — never the employee’s direct supervisor.
Action step: Although a HIPAA consent form is not required for FMLA authentication, it’s certainly advisable to ask the employee to sign one before there is any contact with the health care provider.
Disability benefits and workers’ comp
HIPAA does not prevent an employer from asking an employee’s doctor for information about his or her health if the employer needs the information to administer workers’ compensation or disability benefits. In practice, however, with claims for workers’ compensation — where the parties on both sides have representation and insurers are involved — there may be procedural hurdles for an employer to directly question a doctor.
With regard to self-insured STD and LTD plans, inquiries about an employee’s medical condition are usually made by the insurer in trying to decide on the benefit claim, so it’s the insurer — not the employer — who’s asking for medical information.
Action step: Set the terms of a self-insured plan to allow information requests to a health care provider. Get a HIPAA release before contacting the health care provider.
HIPAA includes an exception for employer-sponsored wellness programs that allows employers to offer financial benefits to employees who participate and meet the goals of the program. The employer may ask health care providers about the employee’s ability to participate, but the health care provider will need a HIPAA release.
The ADA allows employers to ask medical- and disability-related questions as part of a voluntary wellness program, as long as they are job-related and consistent with a business need. Again, the health care provider will want the employee’s signed release.
Similarly, there is a broad exception for employer-sponsored wellness programs under GINA, which allows an employer to acquire genetic information about an employee or his or her family members when it offers health or genetic services under a wellness plan, with voluntary, knowing and written authorization from the employee.
Action step: Ask the employee to sign a HIPAA release before the health care provider is contacted.
Susan R. Heylman, J.D., is a freelance legal writer and editor based in the Washington, D.C., area.
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Lowe’s, Rebuilding Together partner to repair Phoenix homes
Rebuilding Together has teamed up with Lowe’s through its Community Partners program to provide free home repairs to four low-income homeowners and to support the Friendly House in the Central City neighborhood of Phoenix on Feb. 20 and 21.
In its six years of partnering with Rebuilding Together, Lowe’s has donated $7 million and completed 958 projects across the country.
More than 100 Lowe’s Heroes employee volunteers from area Lowe’s stores will team with Rebuilding Together Valley of the Sun.
The volunteers will complete a bathroom renovation and ventilation repairs for a senior couple who are helping raise their grandchildren. Rebuilding Together and Lowe’s Heroes also will repair the kitchen cabinets and do drywall and electrical work for a single father raising three kids and taking care of his senior mother. They will complete bathroom and kitchen plumbing repairs for another homeowner, who was recently diagnosed with cancer.
Carter’s Kids, a nonprofit organization dedicated to creating and promoting awareness of fitness and self-esteem for America’s youth, will join Rebuilding Together and Lowe’s Heroes to build a new playground for the students of Friendly House’s Academia Del Pueblo Charter School.
"Lowe’s has been a tremendous supporter of Rebuilding Together and helping low-income homeowners," said John Fiegel, interim president and CEO of Rebuilding Together. "With their help, we can make homes safer and more energy efficient. And through Carter’s Kids, we can see our impact reach every person in the community."
Report: Retail imports to increase 8.5% in February
A report released Friday by the National Retail Federation and Hackett Associates estimated that retail imports will increase 8.5% in February, after a contract deal between the East Coast and Gulf Coast dockworkers is finalized.
The monthly Global Port Tracker report said that, had a key West Coast agreement also been settled, import cargo volume at the nation’s major retail container ports would possibly have seen an additional rise.
“We were very happy to see a deal on a tentative contract for the East Coast and Gulf Coast ports but we are urging the parties to quickly work out any outstanding issues and ratify the agreement as soon as possible,” said NRF VP supply chain and customs policy Jonathan Gold. “We were disappointed that the LA/Long Beach clerical workers’ contract wasn’t ratified, but are encouraging the parties to work through their differences without a disruption.”
The International Longshoremen’s Association and the U.S. Maritime Alliance reached tentative agreement February 1 on a contract that avoided a strike that could have shut down East Coast and Gulf Coast ports from Maine to Texas. The agreement is subject to reaching supplemental local agreements and ratification by union members. Last Wednesday, however, members of the International Longshore and Warehouse Union’s Local 63 Office Clerical Unit voted down a tentative agreement with the Harbor Employers Association that ended an eight-day strike at the Ports of Los Angeles and Long Beach in November and December 2012.
U.S. ports followed by Global Port Tracker handled 1.32 million Twenty-foot Equivalent Units in December, the latest month for which after-the-fact numbers are available. That was up 2.8% from November and up 8% from December 2011. One TEU is one 20-ft. cargo container or its equivalent. The numbers for December brought 2012 to a total of 15.8 million TEU, up 2.9% from 2011. January was estimated at 1.34 million TEU, up 4.6% from January 2012.
February is forecast at 1.18 million TEU, up 8.5% from last year; March at 1.29 million TEU, up 3.6%; April at 1.36 million TEU, up 4.4%, May at 1.45 million TEU, up 6.2%, and June at 1.45 million TEU, up 4.9%. The six months of data projections for 2013 should bring the first half of the year to 8.1 million TEU, up 5.3% from the first half of 2012.