Employer requiring full disclosure of PHI for absence due to illness

[sandyclaus]

What is the name of your state (only U.S. law)? Oklahoma

Pretty simple question here. Can an employer require an employee to fully disclose private health information about the medical basis for a medically-necessary absence from work?

Question is regarding a policy put in place for staff at a day care center. Requires employees to sign an agreement requiring full disclosure of all information about their particular illness (including specific diagnosis and treatment plan) for which they have already received a doctor's note to excuse their absence. The employee is threatened with termination for failing to sign and/or comply with this new requirement.

Note that this policy applies to ALL illnesses and not just to those that may place clients/parents or other staff at risk.

Is this legal?

 

[swalsh411]

Is this FMLA protected leave you are talking about?

 

[sandyclaus]

Is this FMLA protected leave you are talking about?

I don't know but I don't think so. We're talking about ANY illness for which the employer requires a doctor's note to return to work, presumably after a specific time requirement (as in, if you are absent longer than X days, you must have a note from the doctor to return). Basically, the employee is told that any illness must be fully disclosed, including diagnosis and treatment.

 

[justalayman]

I can't answer your question but..


do you think the employer may have that right due to the possibility of an infectious disease, especially given the type of business it is? I would wonder if not only are they able to seek the info, they may be mandated to. Of course that wouldn't apply to a broken leg or something else that is not contagious.


as to the FMLA question. To trigger FMLA, it must be a serious health condition as defined by the FMLA.

serious Health Condition


You may take FMLA leave to care for your spouse, child or parent
who has a serious health condition and when you are unable to work
because of your own serious health condition.
The most common serious health conditions that qualify for FMLA
leave are:

1) conditions requiring an overnight stay in a hospital or other
medical care facility;

2) conditions that incapacitate you or your family member
(for example, unable to work or attend school) for more than
3 consecutive days and have ongoing medical treatment (either
multiple appointments with a health care provider, or a single
appointment and follow-up care such as prescription medication);
3) chronic conditions that cause occasional periods when you or
your family member are incapacitated and require treatment by a
health care provider at least twice a year; and

4) pregnancy (including prenatal medical appointments, incapacity
due to morning sickness, and medically required bed rest)

 

[sandyclaus]

I can't answer your question but..


do you think the employer may have that right due to the possibility of an infectious disease, especially given the type of business it is? I would wonder if not only are they able to seek the info, they may be mandated to. Of course that wouldn't apply to a broken leg or something else that is not contagious.


as to the FMLA question. To trigger FMLA, it must be a serious health condition as defined by the FMLA.

I completely agree as far as any illness that could put clients, parents, or staff at risk. If it's contagious, it makes perfect sense to notify the employer. However, the new policy requires full disclosure on EVERYTHING - be it a broken leg, a severe UTI, the flu, cancer, whatever. Anytime the employee returns with a doctor's note, they are expected to tell the employer the what, the why, and what's being done to treat it. That is invasive.

 

[cbg]

PHI does not cover anywhere near as much information as most people think.

The employer not only can ask for, but is entitled to, at least as much information as is necessary to determine whether FMLA, the ADA, neither or both apply. That does not necessarily mean diagnosis and treatment, but it's not PHI either.

 

[sandyclaus]

PHI does not cover anywhere near as much information as most people think.

The employer not only can ask for, but is entitled to, at least as much information as is necessary to determine whether FMLA, the ADA, neither or both apply. That does not necessarily mean diagnosis and treatment, but it's not PHI either.

I can understand being required to provide all of that when FMLA or ADA apply, as the info is necessary in order to assess benefits. But what about things that have nothing to do with that? Such as if the person gets a simple STD, or something similarly easily treatable with just the couple of days off the doctor has prescribed? Something that ISN'T a serious health condition, or which can be personally embarrassing if disclosed to those with no legitimate need to know?

 

[cbg]

The fact remains that without a least a reasonable amount of information, the employer doesn't know if FMLA or the ADA applies or not.

Please note that I did NOT say that the employer is entitled to diagnosis and treatment.

 

[sandyclaus]

The fact remains that without a least a reasonable amount of information, the employer doesn't know if FMLA or the ADA applies or not.

Please note that I did NOT say that the employer is entitled to diagnosis and treatment.

Gotcha. So if the employer is insisting on more info than is necessary to determine eligibility for FMLA or ADA, then they'd be bordering on something illegal and unenforceable - yes?

 

[cbg]

Unenforceable, probably.

Illegal is questionable. It would depend on a lot of variable factors, including what purpose the information was going to serve.