Bright (or Blurred) Lines for Medical Information
By Roberta Etcheverry, CPDM
CEO
Diversified Management Group
When considering reasonable accommodations for employees with disabilities, the core issue is assessing how the disability impacts successful performance of the essential job functions. With privacy of personal health information looming large under the Health Insurance Portability and Accountability Act and other laws, employers are often unclear — and cautious — about requesting medical information during the interactive process. What information is the employer entitled to and how do we obtain it? What must employers avoid in the process?
Francesca Moore, Manager of Health and Welfare Benefits and Integrated Disability and Absence Management with Lawrence Berkeley National Laboratory, has extensive experience leading employer disability management teams through this analysis. The first step, Moore notes, is ensuring that the employee and their physician understand what documentation is needed and why, so that the request is not seen as pushback or delay in providing accommodations. Remember that employees and physicians are generally not familiar with the process and educating them can ease their concerns and support a more productive dialog.
In order to effectively determine the “reasonableness” of accommodations, employer and employee must understand what job functions are impacted and how. The dialog should focus on the job-related effects of the disability, and not delve into diagnoses or treatment plans. Moore’s prior work in the healthcare industry taught her that these organizations need to be particularly mindful of keeping “firewalls” in place between the interactive process and employee health plan/benefits information.
The Americans with Disabilities Act (ADA) can apply to both workers’ compensation (WC) claims and to non-occupational health conditions, but those two systems have different rules about sharing medical information. For ADA purposes on non-occupational conditions, Moore reminds us that best practice is to have the employee obtain documentation directly from the physician, rather than interject into the doctor-patient relationship. In Moore’s experience, having standardized methodologies and tools supports consistent employer practices. Questions to the medical provider should include verification that the employee has a qualifying disability, what the work limitations are, and the projected duration of the disability or limitation.
If the employee is unable to obtain the information from the physician or requests assistance with this, employers can communicate directly with the physician, provided that the proper authorization is documented. Release of information forms should clearly indicate who the information will go to; what the information will be used for; that the limitations or effects of impairment are the only information to disclose; and how long the release is valid for.
Another potential challenge in the process occurs when the employee does not agree with the physician’s documentation. Moore cautions that employers cannot simply ignore the employee’s statements and must problem-solve through these issues. Ask the employee to specify what they do not agree with and explain the importance of seeking clarification from the physician as the employer cannot simply ignore or discount the physician documentation. Drafting specific follow-up questions for the physician can be helpful at this point to ensure employer, employee, and physician are all working with the same understanding of the employee’s limitations.
Moore reminds employers that according to the ADA, the interactive process is very much intended to be a case-by-case analysis of the facts at hand and employers must not make assumptions regarding an employee’s capabilities. Employers must instead rely on the information and documentation obtained.
Finally, the interactive process is rarely a one-time discussion; as an employee’s condition or capabilities change, the analysis must continue in an effort to support ongoing employment.