HIPAA and Short Term Disability

[Guest tracygil]

An employee brings in a doctor's statement requesting that the employee be released from work due to a medical condition. Can the employer contact the doctor to verify the request? Can the employer ask the doctor if the employee can work a reduced schedule versus being released from work completely (as the statement indicated)? The employer already knows the medical condition.

[Guest dsilver]

The employer can do whatever it wants--it's not the one releasing protected health information. If the doctor releases the info, it becomes part of the employment record not subject to HIPAA, I think.

[Guest RichS]

A couple of considerations come to the top of my feeble mind on this one.

On your first question... yes, the employer may verify the authenticity of a doctor's note requesting that the employee be released from duty. In fact, it is a good practice to verify the authenticity of ALL requests such as this as a matter of normal business.

On your second question... it's a little more involved.

If the employer is subject to FMLA (Family and Medical Leave Act), then you must follow those guidelines as well as have concern about HIPPA (just another wrench to foul the gears). In addition, if the condition is a result of a workplace injury or illness, it may be subject to state worker's comp regulations. The American's with Disability Act may also play a role if the the other regs do not apply. One more... some states have privacy and disability laws that surpass the federal, so a review of the state regs may be a good idea. Bottom line, the individual circumstance will have huge bearing on the level of caution required.

In my general opinion, the employer should be careful not to request medical information that could later be a basis for action (whether founded or unfounded, the cost of litigation or regulatory investigation is not worth it).

The employer can, however, present to the physician a bone-fide job description and ask the simple question "can the employee perform under this job description?" Included in the job description should be the actual requirements (physically) of the job and the number of hours spent doing certain activities (lifting, reaching, sitting, etc). By doing this, the employer is simply asking a legitimate question... "can the employee do this job?".... as opposed to asking medical questions. Remember, however, that the job description should be the ACTUAL conditions of employment and should be scrutinized to assure that none of the provisions are "unreasonable" in either extreme (either too restrictive or too accommodating).

FYI, there are any number of good job description templates available with a simple search of the web.

While technically the employer may be allowed to ask for anything it wants (that is not discrimatory)... the concern for action in the event of an employment dispute may warrant caution.

[Jbentz]

Too add my two cents as a provider...we would verify for the employer if the not is ligiimate. We would not answer any other questions without a HIPAA valid authorization from the patient.