The advent of our technological revolution has brought with it instantaneous communication and dissemination of information across multiple platforms. With it have come concerns over the privacy and security of that information, especially when it comes to medical information. In response, multiple laws have been passed by Congress over the last few decades in an effort to ensure that our medical information, referred to as “Protected Health Information” (or “PHI”) in the Health Insurance Portability and Accountability Act (HIPAA), remains secure and confidential. These laws include the workplace, making it imperative that employers understand their duties and obligations to protect their employees’ PHI.
The Federal laws that impose medical privacy obligations on employers include the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Health Insurance Portability and Accountability Act (HIPPA) and the Genetic Information Nondiscrimination Act (GINA). These laws provide restrictions and confidentiality requirements at all stages of employment, from the application process through an employee’s work for the employer.
While it is generally true that HIPAA does not apply to employers simply because they collect employee health information, HIPAA will affect employers in the process of obtaining this information because HIPAA usually applies to the health care entity from which the employer is seeking the information. Generally speaking, the most pertinent rules directly imposing employer requirements for the medical privacy of their employees come from the ADA.
Medical Inquiries of Job Applicants
The ADA prohibits phrasing any inquiry to a job applicant in terms of the applicant’s medical history, condition or disability. This includes any questions about the applicant’s physical or mental history, prior Workers’ Compensation claims or a medical condition “checklist.” Questions at the application stage must be job-related, but an employer may ask applicants to demonstrate their ability to perform essential functions of the job they are applying for. For example, an employer can ask about an applicant’s education, experience, qualifications, prior employment and training and whether the applicant can comply with the employer’s attendance requirements. Similarly, GINA prohibits collecting genetic information or family medical history in the application process.
The ADA, however, recognizes a specific and distinct process for inquiring about medical conditions:
AFTER a “conditional” offer of employment and BEFORE the employee begins working, an employer may lawfully make medical inquiries, including a medical examination and questionnaire IF:
• the medical inquiries are administered to all applicants in the same job group
• the medical information is kept strictly confidential.
This so-called “Window of Opportunity” under the ADA allows employers to obtain all the medical information it might need before the new employee actually begins working. Unlike before the passage of the ADA, however, if an employer should discover that the employee has a disability, defined as any physical or mental condition that “significantly limits a major life activity,” a “good faith dialogue” with the employee may be necessary to determine if a “reasonable accommodation” exists that would allow the employee to perform the job’s “essential functions.”
All of these phrases under the ADA have been interpreted by the courts over the last 30 years to have specific applications. Employers should take care and consult counsel as necessary to ensure ADA compliance in both the application process and an employer’s obligations to provide reasonable accommodation.
Medical Inquiries of Existing Employees
After an employee begins working, the ADA imposes much stricter requirements regarding an employee’s medical privacy. Any and all medical inquiries by an employer to an employee must be demonstrably job-related and consistent with business necessity. In addition, all information regarding an employee’s medical condition must be kept confidential and maintained in separate files, accessible only by those with a strict need to know.
Examples of medical inquiries of existing employees that violate the ADA include asking an employee if they have a disability, asking other people about an employee’s disability, asking an employee about his/her genetic information or family history of illness, asking an employee about a prior workers’ compensation case and asking an employee about his/her prescription medication. Examples of sufficient business necessity for medical inquiries of an existing employee include medical documentation to support FMLA leave (in accordance with FMLA provisions), medical information necessary to comply with state workers’ compensation laws and medical documentation necessary to meet an employer’s obligation to provide reasonable accommodation under the ADA.
The ADA, FMLA and Georgia’s Workers’ Compensation Act all have specific provisions and instructions for an employer’s ability to obtain verification and appropriate information regarding an employee’s need for reasonable accommodation, medical leave and workers’ compensation benefits. A difficult situation can arise where an existing employee behaves in such a way as to cause the employer to believe that he or she either cannot perform their job adequately, or may even present a risk of harm to others or themselves. The ADA does not prohibit an employer from obtaining medical information that an employee can perform the essential functions of their job (with or without reasonable accommodation) or that the employee does not pose a significant risk of harm to others or themselves.
An employer may obtain this information from the employee’s physician or their own choice of medical expert, but must be cautious to limit such inquiries to these issues, as opposed to a general inquiry about the employee’s condition. Similarly, the ADA allows an employer to obtain medical documentation to assist in its obligation to reasonably accommodate an employee’s disability. The ADA therefore provides a specific mechanism to allow an employer to address questions that arise regarding any employee’s ability to safely and adequately perform their job.
Periodic Medical Testing
Generally, periodic testing of current employees is only acceptable for those affecting public safety, such as Police Officers, Fire Fighters and Emergency Medical Technicians, or other positions where medical testing is required by Federal or State law, such as with long-haul truck drivers. Voluntary Wellness Programs are not illegal so long as the program is completely voluntary, all medical information is completely confidential and the program clearly states it is not for use with any employment action.
Similarly, lawful periodic drug testing is permitted provided it is non discriminatory and complies with the same confidentiality requirements as any other PHI. Georgia’s Drug Free Workplace Act provides details on how a lawful drug and alcohol testing program can be administered, and achieve reduced workers’ compensation premiums.
By Attorney Joseph Chancey, Drew, Eckl, & Farnham
303 Peachtree Street NE, Suite 3500, Atlanta, GA 30308
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