Keep Your Employees’ Medical Information Confidential
I came across an interesting case
recently which highlighted the importance of taking precautions to keep employee medical information confidential. The case, which is a few years old now, involved an employee who had suffered an injury at work and needed to take time off to recover. One of the employee’s coworkers processed his worker’s compensation claim and monitored his treatment.
The coworker then posted on Facebook, “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.” The employee, George Shoun, then sued his employer for violating the Americans with Disabilities Act
(ADA) by disclosing his health information. The court refused to throw out the case, finding that the employee had stated a proper claim for a violation of the ADA.
The basis of the employee’s claim was section 102 of the ADA, which imposes on employers strict rules for handling employee health information. Employee health records submitted to an employer pursuant to a claim for an accommodation under the ADA must be kept confidential and separate from other personnel records. Ideally, these records would be kept in a separate file cabinet that only a limited number of employees would have access to. These records may only be revealed to safety and first aid workers to treat the employee, or to the employer’s supervisor in order to determine what reasonable accommodation can be given to the employee. The employee claimed that his employer failed to abide by section 102 by allowing other employees to see his medical records.
The Health Insurance Portability and Accountability Act
(HIPAA) also requires certain organizations to keep health insurance information confidential. HIPAA requires healthcare providers, health insurance companies, and government healthcare programs to keep participant health insurance information confidential. Failure to do so, could leave these groups open to a lawsuit.
The Genetic Information Nondiscrimination Act
(GINA) also requires employers to keep employee medical records confidential. GINA prohibits employers from requesting or requiring that employees provide genetic information. If they happen to receive this information inadvertently, then they also must keep it in a separate file.
Feel free to contact me
if you would like advice on maintaining employee records in compliance with the law.
You’re Sick – Go Home
What do you do about the employee who comes to work sick? The coughing and sneezing is not only making everyone else in the workplace cringe and rub sanitizing lotion on their hands, but if everyone catches this virus, how will the work get done?
Employers struggle with how to manage their workforce during cold and flu season. On the one hand, employers typically encourage good attendance and praise the dedication of employees who come to work even though they feel under the weather. On the other hand, nobody wants to be around someone with a bad cold or flu; aside from the fact that colds and flu are very contagious
. For every “trooper” who works through an illness, many more will stay home until fully recuperated.
It’s Okay to Send a Sick Employee Home
First of all, employers have the obligation through state and federal regulation and often by collective bargaining agreement, to provide a safe work environment. This can include contagious disease. In order to protect the safety and health of the workforce, an employer can send an employee home who reports to work with an obvious illness.
The trickier question for employers is often whether an employer has to pay an employee that has been sent home because they are sick. The answer is simply no; an employer does not have to pay a non-exempt employee who reports to work sick and is sent home. Exempt employees may present a different issue.
Unless a policy or collective bargaining agreement provides otherwise, If either a non-exempt or exempt employee has accrued sick or paid time off, an employer can deplete this benefit to pay an employee who has been sent home sick. Similarly, unless agreed upon otherwise, if either an exempt or a non-exempt employee has no sick leave, but has accrued vacation leave only, an employer can deplete vacation time. Non-exempt employees can be docked pay if they have no accrued benefit time.
Employers should beware of how they treat exempt employees when they send them home because they are sick. Generally, with only limited exceptions, when an employer docks the pay of an exempt employee it creates the risk of destroying the exempt status. An employer can safeguard against that risk by continuing the pay of an exempt employee who is sent home but has no benefit time to use in lieu of working.
Similarly, if consistent with policies or collective bargaining agreements, it may be appropriate to require a return to work note from the employee’s doctor. Finally, employers should remember that employees who are sent home sick may also be FMLA
eligible. Employers should determine whether circumstances warrant placing an ill employee on conditional FMLA leave.
While employers may appreciate the efforts of employees who want to work through a bad cold or the flu, it is important to protect the rest of the workforce as well. If the flu spreads to a number of employees, it can bring business to a halt. When that business is serving the public, this can be even more difficult, resulting in those well employees to work overtime to pick up the slack. Employers should consider being proactive and send sick employees home until they recuperate.
Transgender Issue to Consider in 2018
Amid the chaos that was 2017, transgender issues seemed to fall below the radar for a while; or Twitter, whatever-it’s all a blur. However, despite the fact that there is a seemingly constant stream of other distractions for employers and Americans in general to worry about-nuclear annihilation, climate change, who has better hair–Kim Jong-Un or Donald Trump?
-we still need to be cognizant of transgender issues in the workplace.
If asked to summarize transgender issues regarding discrimination and harassment at the federal level in a word, my word of choice would be “confusing.” The EEOC has issued guidance which clearly and unequivocally states that any discrimination related to gender identity or harassment related to gender identity or transition constitutes unlawful discrimination. If this were a play, that would be Act I. Act I would be followed by a crash of thunder, maybe some lightning, and then the entry of U.S. Attorney General Jeff Sessions (When I see him, I always think of Rick Moranis in that Darth Vader outfit in the movie Spaceballs...sorry Rick.). Anyway, AG Sessions has authored a memorandum wherein he points out that the Justice Department will “take the position that Title VII’s sex discrimination prohibitions don’t protect employees on the basis of gender identity”. So to clarify, from the top lawyer in the country, "you are what you are and we don’t really care what you think you are". Simple enough.
From my perspective, the safe bet is to continue to follow the EEOC’s guidance as well as OSHA’s guidance. I say that for two reasons. First, it just seems like the right thing to do. I’m not a doctor or a psychiatrist, and I’m certainly not very liberal but I find it hard to believe that it’s easy being a transgender person. Second, Illinois is one of a growing number of states that have anti-discrimination laws that protect transgender people. So even if the federal government says that it is okay to discriminate against transgender people, the State of Illinois does not approve.
So for 2018, I think the best advice for employers is to treat your transgender employees the same way that you would want them to treat you if the roles were reversed. And finally, I would be remiss if I failed to point out the irony in the fact that the federal government seems to be unable to resolve its own identity crisis on the issue of…identity.
Welcome to 2018. May the Force be With You...you’re going to need it.
FOIA Bill Would Require Publication of Severance Agreements
Last week, the Illinois House introduced a bill that would amend the Freedom of Information Act to address severance agreements with employees accused of sexual harassment or sexual discrimination. If enacted, HB 4242
would require units of local government to publish notice within 72 hours of making any payment to an employee under a severance agreement. The notice would have to be published on the local government's website and in a newspaper with the largest circulation in the local government for a period of 7 days and would have to include the following information:
- the name of the person receiving the payment;
- the amount of the payment; and
- the fact that the person receiving the payment has been accused of sexual harassment or sexual discrimination, as the case may be.
Interestingly, although FOIA applies to all public bodies, including the state government and its agencies, this proposed FOIA amendment only applies to units of local government and does not cover state agencies. There was a "companion" bill introduced on the same day, however, that would prohibit use of state funds for payment to any state employee "involved with or relevant to allegations and investigations of sexual harassment by a member of the general assembly."
HB 4243. If that bill passes, it would seem to prevent not only a severance payout to a state official but also prevent a payout to an alleged victim.
We will keep you posted on the proposed legislation and let you know if it goes anywhere.
Employer Can Require Medical Exam after Employee Claims Co-workers are Watching Her at Work and Home
Last month, a Michigan District Court addressed the issue of whether an employer can force a seemingly unstable employee to take a medical examination before returning to work.
In Monroe v. Consumers Energy
, Ms. Monroe had worked for Consumers Energy for nearly 13 years when her supervisor had noticed a change in her behavior. Monroe was losing focus and concentration, in turn affecting her work performance, and had stopped interacting with her co-workers. Following these observations, at the end of 2013, Monroe filed a complaint with her employer stating that she was being tracked and surveilled by her co-workers. Among the allegations made in this complaint, Monroe stated that her co-workers were intercepting her personal text messages on her personal phone, placing listening devices in both her office and the office next to her, recording her both in her office and at her home with video cameras, and installing a GPS tracking device in her car and listening to her through her car’s key FOB.
After an investigation of the allegations made in the complaint, and a meeting with Monroe, the Director of Human Resources arranged to have Monroe take an independent medical examination (IME) to determine if she was able to perform her position’s essential functions. Monroe underwent the IME and the doctor determined “indications of a high degree of interpersonal sensitivity, tendency toward paranoid thinking and difficulty in interpersonal relationships.” In accordance with these results, the doctor recommended 12 sessions of counseling before she return to work.
Monroe refused to attend these counseling sessions, remained on paid sick leave, and 10 months later contacted her employer about returning to work. After undergoing a second IME, the doctor concluded that while Monroe had made improvements, he still believed she should participate in the counseling before going back to work. Monroe then filed an EEOC complaint against her employer claiming she was regarded as disabled under the ADA and discriminated against when they required her to undergo the IME.
The court looked at the ADA specifically and made one primary conclusion: Monroe’s behavior, including the allegations made in her complaint as well as her performance issues at work, gave her employer reason to look into whether she was capable of effectively doing her job.
Section 12112(d)(4)(A) of the ADA
permits medical and psychological examinations, including IMEs, so long as they are consistent with business necessity. When Monroe’s ability to perform in the position she held at work was threatened by the behavior she was exhibiting, her employer had reason to require her to undergo an IME as well as the followed recommendations.
While the ADA does prohibit employers from requiring medical examinations or inquiring as to whether an employee is an individual with a disability, if it is done with a job-related purpose or with business necessity, the ADA allows for it. Once an employee’s personal issues begin affecting their work performance, requiring them to take an IME, and conditioning their return to work on it, is allowed.