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