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How To Protect Your Employees' Health And Privacy Rights

It’s a jungle out there – the tangled thicket of government rules and regulations companies must navigate to protect employees’ health and privacy rights. Naturally, you want to do what’s best for your workers. But good intentions won’t keep you from a brush with the health police – the numerous federal and state agencies that enforce key health provisions.

This article will help you understand the rules and find authoritative sources of information.

Workers’ Compensation Insurance
If you have employees, you need workers’ compensation for your own protection. If you don’t have it, and an employee is injured at work, you could be faced with a civil suit as well as fines and stop-work orders.

Workers’ comp represents a “compensation bargain” between employer and employee. Employees hurt on the job receive money and medical benefits; in exchange, they forfeit the right to sue employers.

State law may or may not oblige you to get coverage. In Missouri, you must have insurance if you employ five or more people. Minnesota requires it if you have even one part-time employee.

In most states you can purchase workers’ comp insurance from private insurers. A dozen states operate insurance funds to provide riskier businesses with coverage. Talk to your insurance agent or broker about options and costs.

The Family Medical Leave Act
Companies with fewer than 50 employees aren’t bound by the federal Family Medical Leave Act (FMLA), although state laws may be more restrictive. For instance, Maine’s family and medical leave laws apply to employers with 15 or more workers.

The act as passed in 1993 says that covered full- or part-time employees are eligible for as much as 12 weeks of unpaid leave each year under certain circumstances. Qualifying events are:

• The birth of a child or placement of an adopted or foster child

• The need to take care of an immediate family member with health issues

• The employee’s own serious health condition

In January 2008, FMLA was amended to allow an immediate family member or next of kin to take as much as 26 weeks of leave to care for a member of the Armed Forces who is receiving medical treatment or therapy for serious injury or illness.

Leave needn’t be taken in a lump. Employees may request it in increments as small as an hour.
Americans with Disabilities Act
The Americans with Disabilities Act (ADA), signed into law in 1990, prohibits employers from discriminating against qualified people with disabilities when it comes to hiring, firing, advancement, pay, training, benefits and job conditions. A “qualified individual” is one who can perform a job’s essential functions with or without “reasonable accommodation.”

At the federal level, the law applies if you have 15 or more employees. But, your state may have stiffer rules. In Massachusetts, for example, businesses with six or more employees must comply with ADA.

For details, contact your state department of labor or one of the 10 government-sponsored regional Disability and Business Technical Assistance Centers, www.adata.org, 800-949-4232.

Reasonable accommodations could include making your worksite accessible to someone who has a disability, restructuring a job, and buying or modifying equipment needed to perform the work. Note that “reasonable accommodation” does not force an employer to reduce her standards or to make changes that would impose “undue hardship” on the business.

What about accommodating customers? Unless your company is a private club or religious entity, ADA obligates all public businesses to offer customers “access to goods and services,” although the government says the provisions do not require “any action causing undue financial burden.”

As an example, even though your business is off limits to dogs, you must allow access to customers (or employees) who use service animals.

Admittedly, key ADA phrases such as “undue financial burden” and “reasonable accommodation” are fuzzy and open to wide interpretation. When questions come up, take advantage of these resources:

• Free consultation from your regional Disability and Business Technical Assistance Center, www.adata.org

• The U.S. Equal Employment Opportunity Commission, www.eeoc.gov, 800-669-4000, TTY: 800-669-6820

• Free consultation and technical assistance from the Job Accommodation Network, www.jan.wvu.edu, 800-526-7234, TTY: 877-781-9403

Small businesses may qualify for tax credits and deductions that can help offset the cost of accommodations, building modifications and barrier removal. Ask your tax professional or visit the IRS Web site at www.irs.gov.

HIPAA Regulations
Passed in 1996, the Health Insurance Portability and Accountability Act (HIPAA) has two aspects. Title I has to do with protecting workers’ health coverage when they change jobs. Title II governs, among other things, the security and privacy of health information.

Title I obligates all employers who offer a health plan to provide a “certificate of creditable coverage” when an employee changes jobs or buys individual health insurance. When you hire someone, ask about his or her certificate if your company’s health plan has exclusions for pre-existing conditions. The certificate assures that credit for such conditions carries over from one health plan to the next.

As part of Title II, HIPAA’s “privacy rule” sets the conditions under which a health plan can share individually identifiable health information with an employer or plan sponsor. If you sponsor a group health plan for employees, the plan is a “covered entity” subject to HIPAA regulations. The only exception is self-insured and self-administered plans with fewer than 50 people participating. These small plans are not subject to the privacy rule.

Even when a group health plan is administered by an insurance company, you and the insurer are both responsible for making sure the plan complies with HIPAA.

The privacy rule means an employer can’t ask an employee direct questions about medical problems and treatment because the answers constitute “protected health information” (PHI). Nor can a human resources clerk in your business give you this information – for example, that another employee has been diagnosed with a disease.

Experts recommend that businesses keep PHI wholly separate from other employment records, in secure filing cabinets and protected computer databases. Share it only on the strictest need-to-know basis.

To protect your company – and employees’ information – designate a specific company official who’s responsible for implementing privacy policies and safeguards. Make sure all employees are aware of your policies and document any training or policy statements workers have received.

To learn more, consult the Department of Health and Human Services Office for Civil Rights, www.hhs.gov, 866-627-7748.

Forbidden Questions: What You Can And Can’t Ask Employees
You’re in dangerous territory when it comes to discussing health issues with workers.

The less you ask, the better. And when you do discuss medical concerns that have a bearing on work, focus on whether the employee can perform essential job tasks rather than his specific health conditions or problems.

If an employee says he needs several days off for medical treatments, you can’t inquire what the problem is or what the treatment will be. You are within your rights, though, to ask whether he will need any special assistance to perform his duties after coming back to work. You can also require medical documentation – such as a note from a doctor – but only if all workers who take sick leave must also abide by the policy.

If an employee appears to have a disability, you can ask whether she needs accommodation to help her do her job. If she discloses her disability to you and asks for accommodation, you can discuss the options. You can also request medical documentation for a disclosed disability.

If you have good reason to suspect that a medical problem renders an employee unable to perform essential job functions or that it puts him, employees or customers in danger, you can ask for specific medical information or compel him to have a doctor’s exam. But tread lightly. Make sure you can document a legitimate business need for the information. When in doubt, consult an attorney before initiating that conversation.

The bottom line is that your requests for medical information must be based on one of the following:

• Disclosed problems

• Documented performance issues

• Requests for accommodation

• A stated need for family or medical leave

Help Employees With Health Issues Without Overstepping The Law
Focus on ways you can help rather than the employee’s specific health challenges. Always be ready to consider and discuss modifications that can help an ill or disabled worker maintain high job performance.

Keep health concerns confidential, telling other workers the bare minimum that’s necessary to provide accommodations, maintain a safe environment or process workers’ comp or insurance claims.

Defuse concerns that some people get special treatment (for example, a diabetic worker who is allowed to snack at his desk) by making it clear that you’ll do what you can to help any employee who has health issues.

Of course, it’s illegal to discriminate based on health or disability – but your group health plan is allowed to encourage good health habits by offering discounts or rebates for those who take part in wellness or disease-prevention programs.

For More Information
To learn more, visit these government-sponsored Web sites.

The Department of Labor (DOL) eLaws Advisors: Employment Laws Assistance for Workers and Small Businesses
www.dol.gov/elaws/

DOL compliance assistance site for federal employment laws
www.dol.gov/compliance/

Note: The information presented in this article does not constitute legal advice.