By Ann Boehm, February 20, 2024

I heard from some readers that last month’s Q&A on medical inability to perform removals was timely. Yay!  I also had some follow-up questions regarding medical documentation. No time like the present to address those issues.

If an agency is considering a removal for medical inability to perform, who may have access to medical documentation?

Agency employees, such as reasonable accommodation coordinators or health officers, are often reluctant to share medical documentation with supervisors or other decision-makers. Their instincts may be noble, but also incorrect.

A supervisor cannot make a decision about a medical inability to perform without, well, knowing about any medical issues and the impact of those issues on the employee’s ability to perform the essential functions of the job. So, what can be shared?

Our friends at the EEOC have guidance on their website about the confidentiality of medical documentation and who can access that information.

This EEOC guidance explains “[t]he ADA requires employers to treat any  medical information obtained from a disability-related  inquiry or medical examination (including medical information from voluntary health or wellness programs), as well as any medical information voluntarily disclosed by an employee, as a confidential medical record. Employers may share such information only in limited circumstances with supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA.”

How is an agency supposed to store a confidential medical record?

It is very important for an agency to properly store confidential medical records. The ADA addresses this, and agencies can be liable for violating this statutory language: “information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record.” 42 USC 12112(d)(3)(B) (emphasis added).

Note the emphasis added here: Do not store confidential medical information in a disciplinary or other personnel file.

What about HIPAA – the Health Insurance Portability and Accountability Act of 1996? Does it apply?

Since everyone who has ever been to a medical professional is acutely aware of the privacy protections under HIPAA (forms, forms, and more forms), there’s a belief that HIPAA applies to employers. But nope, that’s not the case.

For this, we turn to our friends at the Department of Health and Human Services for assistance (they are the HIPAA people).

“The [HIPPA] Privacy Rule does not protect your employment records, even if the information in those records is health-related. In most cases, the Privacy Rule does not apply to the actions of an employer.” But HIPAA does apply to health care providers. HHS explains, “if your employer asks your health care provider directly for information about you, your provider cannot give your employer the information without your authorization unless other laws require them to do so.”

Also remember this: You do not need the employee’s entire medical file – just information related to the employee’s medical inability to perform. Diagnosis, prognosis, and functional limitations should be the focus.

It’s important to properly handle confidential medical information, but it’s also important to have access to that information in a medical inability to perform case. There is a lot of solid guidance out there from the EEOC and HHS – and that’s Good News. [email protected]

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