Part 18: Limitations on the Employer to Acquire Confidential Medical Information
The topics we are covering all also going to be addressed in detail in an upcoming book we’re publishing: Helping the Injured or Disabled Member: A Guidebook for the Washington Law Enforcement and Fire Union Representative. It is also our intention over the course of the next year to travel through the state and provide training to public safety union and guild representatives on how best to enforce these rights. Expect to hear more on that in the months ahead.
The 18th article in these newsletter series provides a discussion concerning the limits on an employer’s right to acquire confidential medical information under the ADA. For more information, visit our Premium Website. Coming soon on the website you’ll find an on line version of the Injured or Disabled Member’s Guidebook and other information on the laws covering your members.
The ADA was drafted with a lack of clarity regarding the role of the doctor and what the doctor can report to the employer. Courts have yet to clarify what those restrictions are, but at least one plausible reading of the statute is that the doctor is only permitted to report to the employer the information narrowly focused on whether the employee can perform the specific job and what accommodations might be needed to assist in performing the job. Although it is a common practice for doctors to release the entire medical report, it appears that this practice might be illegal under the ADA.
Often, the employer or the doctor will try to get the employee to sign a “waiver” that would allow the doctor to make unrestricted reports to the employer. The legality of these waivers is doubtful.
Often, the employer or the doctor will try to get the employee to sign a “waiver” that would allow the doctor to make unrestricted reports to the employer. The legality of these waivers is doubtful. Although the employee is obligated to cooperate with valid medical examinations, there is no legal basis for either the employer or the doctor to require employees to waive whatever legal rights they may have under the ADA if the reports are made in contravention of the statute. Employees or union representatives who are presented with the issue of a required waiver form should seek legal counsel concerning their response to the request. Our firm maintains a specific waiver form that we advise our clients as the only form that should be signed.
The ADA contains strict requirements for maintaining the confidentiality of the medical information once it is disseminated to the employer. Medical reports are to be maintained in separate medical files, and access is restricted to designated individuals. The ADA requires that supervisors and managers may be informed about specific work limitations, but not about the nature of the medical condition.
The ADA does not define who is a “manager.” Is the police chief a “manager?” If so, only the doctor the employer contracts with has the right to hold the information. Or is there someone at the top of the employer’s management pyramid who has a right to this information? The courts have yet to decide these issues.
Another common practice for employers — which is likely in violation of the ADA — is to record specific medical information on sick leave request or verification forms. First, unless there is a history of sick leave abuse, it is unlikely that the employer is entitled to any information concerning the reason the employee is sick on a given day. Second, even if there is a business necessity for requiring this information, it must be maintained as a separate medical report and cannot be retained in a general personnel file or file of leave records.
