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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.