AD Main Menu

Lynne Curry: Does my boss have the right to all my medical information?

Lynne Curry

Q. My employer wants me to sign an "Authorization to Obtain Medical Information & Reports" form, which gives them permission to obtain any and all medical information and reports for any treatment from any physician or medical facility prior to or during my employment.

It further authorizes them (plus their insurers and an appointed physician) to inspect, review and copy any information obtained. I also hold any and all parties harmless from claims as a result of this information.

I don't know why they would want this. Our company uses Premera and they have all my medical information.

I don't want to sign this form but don't want to lose my job over it. What recourse do I have?

A. According to attorney Mark Fijman, your employer's waiver asks you to release them from any potential future violations relating to any potential misuse of protected medical information. "By doing so," says Fijman, "they're out of step with the federal Equal Employment Opportunity Commission (EEOC)'s Strategic Enforcement Plan for FYI 2013-2016, which specifically declares the EEOC's intent to target an employer's efforts to have employees sign overly broad waivers."

Further, says Fijman, it's a problem that your employer wants "broad and unrestricted access to your medical information. In the Department of Labor (DOL) guidelines concerning an employee's rights under the Family Medical Leave Act (FMLA), the DOL expressly states an employer may not require employees to sign a release or waiver as part of the medical certification process."

Fijman adds that this type of release actually serves little purpose: "The DOL has also have made it clear that employees don't waive their rights under the Americans with Disabilities Act (ADA) with an authorization such as yours. This will also be the case under the Genetic Information Nondiscrimination Act (GINA)."

Fijman notes that the type of broad authorization your employer requests additionally "sends up a red flag to many regulatory agencies," and "GINA's provisions generally prohibit group health plans and health insurance issuers from discriminating based on genetic information. ..."

This type of request can also lower morale, as employees may feel it invades their privacy. It can delay employees from seeking medical treatment, and an employee may wonder if a diagnosis of high blood pressure, diabetes or cancer puts their job at risk.

Fijman adds that there are "limited instances under the ADA when an employer may request a release for limited access to medical information to enable the employer to determine the extent of the employee's limitations or need for accommodation. Employers need to exercise caution when making these requests and must take care to implement procedures to safeguard any medical information gathered."

"Prior to requesting information from the employee's health care provider directly, the employer should have the employee sign a Health Insurance Portability and Accountability Act (HIPAA) release of medical information form, allowing the employer to have access to only the medical information necessary in determining what accommodations may be needed and not to specific diagnosis information."

Your best strategy? Ask the person who handed you the authorization form why it's necessary. When they tell you, let them know you believe it's overly broad and may be out of step with current federal laws. Will this polite request put your job at risk? Probably not, and if so, you have recourse.

According to Fijman, requests such as the one your employer made most often come from a lack of knowledge. Fijman advises your company to "do its homework, especially before taking any adverse employment action based on your or any other employee's refusal to sign the release. Employers requesting broad and unrestricted releases are begging for an EEOC Charge, a Department of Labor investigation or a lawsuit."

Dr. Lynne Curry is a management/employee trainer and owner of the consulting firm The Growth Company Inc. Send your questions to her at lynne@thegrowthcompany.com. You can follow Curry on Twitter @lynne curry10 or through www.workplace coachblog.com.

 


By Lynne Curry
THE WORKPLACE