HIPPA Waiver

HRLegal

In a post-accident drug screen, employee is found to have taken a common medication for which s/he has no perscription. Employee's spouse is in the medical field, and it is suspected that is the source of the medication. We want to give the employee the opportunity to explain hm/herself but are concerned about violating HIPPA rules relating to Private Health Information. Is there a form of waiver that can be offered to the employee that would protect the employer when the employee offers PHI to explain violation of the anti-drug policy?

NaeNae55

I don't think you need one here. You are not asking for medical history or diagnosis. You are asking for proof that they are taking the medication legally. They either have a prescription or not. If not, then what is their explanation? If they offer one that is reasonable (and legal), fine. And if not, then what is your policy? Whatever it is, follow it and you are done.

Good luck!

HRLegal

It's not quite that simple. That is exactly what we would do, and have done in the past, for a normal rank and file employee. Unfortunately, this particular employee is in a class that has special due process rights afforded under state law. Those rights are in direct conflict with the written policy.

Still Need Coffee

Without knowing all the details, I would still agree with Nae, a waiver isn't needed. First of all, you don't really "violate" HIPAA (make sure you don't write HIPPA!) unless you are a HIPAA covered entity, and disclosure of PHI to a person with authorization and a duty to protect such information (such as your human resources department), would fall under acceptable disclosure rules, especially if your company has a confidentiality/non-disclosure policy and agreement.

Absent a HIPAA control policy, I think you should be looking at your drug-free workplace policy, unless for some reason you're worried about GINA violations. If that's the case, limit access to the information to only those needed to make the decision, and be able to back it up. If this person is given "rights" not afforded to all employees, I assume there's a legitimate business reason for it.

We've gone through similar situations with employees, and our response has been to refer them to our EAP for drug counseling, and random drug screens over a 3-6 month time period. Would that work for your situation?

ACU Frank

"Special due process rights?"

The right to due process is granted to all by the 14th Amendment of the Constitution. I'm trying to think of possible circumstances that can bestow "special" constitutional rights on anyone and can't... Can you be more specific?