In the previous post, I address preliminary responses to “Greg”, who suggests that a medical condition is interfering with his ability to do his job. In this post, I’ll address medical information.
HR decides that it needs some medical information before it can respond to Greg’s request for help.
Who picks the doctor? It generally is less confrontational to allow Greg to use his own doctor, at least for the initial opinion. There are times when this approach will not make sense. As one example, if Greg claims to have a severe musculoskeletal medical condition, a statement from his family practice doctor might not be helpful. A statement from an orthopedist might be preferred. Often, the process works best if the employer allows the employee to provide the initial medical statement from the employee’s doctor. The employer can require a second opinion as appropriate.
Who pays? If Greg goes to his own doctor, he should pay. If the employer picks the doctor, the employer should pay. That said, state law must be consulted as it might require the employer to pay when the employer requires the medical information, regardless of who selects the doctor.
How can HR reduce HIPAA headaches? Obtaining information from an employee’s doctor can sometimes be a Herculean task. Doctors might incorrectly assume that HIPAA prohibits the employer from obtaining the information. To avoid this fight, unless there is good reason to believe that Greg will tamper with his doctor’s opinion, consider requiring Greg to deliver the opinion from the doctor. Greg likely either will provide it or will sign the doctor’s required authorization form to allow the doctor to send the information directly to the employer.
Are there limits to what HR should request? HR should limit the request for medical information to information necessary to address Greg’s need for help at work. Rarely, if ever, is a complete medical history necessary or appropriate. If GINA applies, family medical history should not be requested. Language to consider including on your request for information to address GINA follows:
To comply with applicable law, please DO NOT INCLUDE the following information: Employee’s family medical history, the results of Employee’s or any of Employee’s family members’ genetic tests, the fact that Employee or any of Employee’s family members sought or received genetic services, or genetic information of a fetus/embryo carried/held by Employee or any of Employee’s family members.
What if the doctor fails to cooperate? Generally, a non-cooperative doctor is only hurting the employee. Employers may obtain certain information when an employee asks for an accommodation. Remind Greg it is his responsibility to provide the requested information. If it is not provided, a potential result is no accommodation.
Where should HR put the medical information? Greg’s medical information should be maintained in a confidential file separate from Greg’s personnel file. Access should be limited to those who need to know the information. Rarely, if ever, will that include Greg’s supervisor.
How do I accommodate? Once you understand how Greg is limited in his job performance, it is time to consider potential accommodations. I’ll address that in the next post.
(This post is not legal advice. Consider consulting with a lawyer about any specific situation)