Demanding Medical Records
jimlegal
218 Posts
I have a situation where executive/management wants to demand that any employee who took a sick day since 2000 provide medical records for every sick day taken. Although we have a business necessity for some medical information, I am concerned that this goes to far any possible violates the ADA.
Does anyone have a policy that requires medical documentation for every sick day taken? If so, how did you implement it so as to not violate the ADA? Any thoughts, comments, and guidance would be greatly appreciated. Thanks...
Does anyone have a policy that requires medical documentation for every sick day taken? If so, how did you implement it so as to not violate the ADA? Any thoughts, comments, and guidance would be greatly appreciated. Thanks...
Comments
(edit) And, by the way, tell us what business necessity you feel you have for an employee's medical records, ever.
Sick time is there to be taken. Frankly, sometimes what employees are sick of is work.
The most common rule I've seen is that for absences over 3 days in length require a medical excuse. That seems a reasonable standard to me.
>I have a situation where executive/management
>wants to demand that any employee who took a
>sick day since 2000 provide medical records for
>every sick day taken. Although we have a
>business necessity for some medical information,
>I am concerned that this goes to far any
>possible violates the ADA.
>
>Does anyone have a policy that requires medical
>documentation for every sick day taken? If so,
>how did you implement it so as to not violate
>the ADA? Any thoughts, comments, and guidance
>would be greatly appreciated. Thanks...
WHat does you policy call for?
My $0.02 worth!
DJ The Balloonman
What possible "business necessity" could you have to see every employee's medical records for every sick day they've taken? You might want to worry about HIPAA, as well as ADA on this.... not to say the effect on employee morale: sounds a lot like living in a "gestapo" state.
Another consideration is: you set yourself up for anyone who's fired to come back claiming they were fired because they were sick (ADA-qualifying disability aside), if the company has been sticking its nose in their medical records.
For our part, NAFCU normally does not require a Dr's note for sick days, and never demands to see anyone's medical records, even for disability insurance claims. We have only in rare circumstances (twice in the 4+ yrs I've been here)required an employee to submit a Dr's note for sick days-- and these were temporary disciplinary situations (EEs who had problems with excessive absenteeism and abuse of sick leave policy.)
I hope you succeed in persuading the boss that this is a really BAD idea!
Best of Luck,
If "the boss" wants medical records, aside from this reason, he is asking for trouble.
I understand an employers need for very limited medical information for sick leave usage. I have a hard time understanding the need for information over a year old.
I also see the employees side. Employees have laws in place that protect their medical information. However when the employee under threat of termination, obtains the medical records and releases them, it seems the very law that protects employee medical records goes away. Primarily because the employee "voluntarily" provided medical records to a third party.
Has anyone run into a situation like this?
I'm still stressing...
Back in my retail HR days, I supervised 3 full time pilots and one on call pilot; all had to keep their their physical exams current (a check up)and like my truck drivers today, I keep the company copy of the physical exam on file and ready for audit by appropriate people. Unless changed the FAA propably still requires an annual flight physical by a certified FAA flight physician. Our pilots would fly our airplanes in for maintenance in Oklahoma/Kansas area and while there they would also get their flight physicals done and then provide my office with a copy.
Now for the rest of the employees to provide medical record in this litigation world of today is down right dumb!
OINK, OINK here piggie, here
PORK
If you were to be in possession of full medical records on an employee, ANY adverse employment action could be suspect of being based on information in that medical record. Besides, how are you going to keep up on it - request the doctor's notes for every office visit related to an employee absence? Well, why not go the next step - get full medical records on every employee, regardless of their attendance record, to find out in advance if they've got a condition that might cause them to miss work in the future, and start basing promotions and salary increases on the potential for future attendance problems!
Good grief!
We do want to know when someone is sick at home or in the hospital because we send flowers to those in the hospital and check up on those who are reported sick at home: our purpose is to stay on top of the 5 days of absence of a potential FMLA qualifying circumstance or a termination event should an employee not qualify for FMLA or personal time off without pay in order to get well and return back to work.
We had one three weeks ago break his leg, while playing baseball (sand lot ball) in the neighborhood. He did not qualify for FMLA, we allowed him to use up his vacation time, his sick time, and gave him two weeks of personal time off withour pay, the manager wanted to anything and everything to keep this young man on the payroll. We reached our outer limits and two days before he was to be terminated he talked his physician to release him to limited duty. He returned to work on a crutch, a plastic take on and take off cast, and was happy to be there. All of this and I did not need anything more than the physician's excuse to tell us he was still under his treatment plan and final release.
The less medical information you need or expect the less you will have to get audited.
PORK
Please don't make your pilots mad- road rage is bad enough without riling up "air rage" in the cockpit.
However, that being said, I would obviously be interested if a pilot were prescribed some type of medication that would make him/her unfit for duty.
I'd ask for a physician's excuse and some type of fitness for duty release for absences of more than three days for those employees who are in positions where the safety of others may be in jeopardy.
Our rules require employees to inform us if they are taking any medication (prescription or OTC that might inhibit their ability to operate equipment, etc.). If they are otherwise okay to work, we temporarily reassign them to work that does not involve operating equipment.
More than that could put you in breach of privacy rules.
A recent case Fountain v. New York Dep't of Corr. Servs., 190 F.Supp2d 335 (N.D.N.Y.2002), aff'd in part and vacate and remanded in part by Conroy v. New York State Dept. of Correctional Services, 333 F.3d 88 (2nd Cir. N.Y. June 18, 2003).
Addressing sick leave and required production of medical information is similar to our situation.
After contacting different labor attorney firms in Texas, we have learned that this is a "research" issue. Now we are seeking to hire a labor attorney in Texas with some ADA experience to contrast what mgmt/executive would like to do and what they actually lawfully can do.
My thanks to everyone who on this forum who responded. As usual your input was extremely helpful.