WorkComp Advisory
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Q & A: Obtaining medical information

Q. “I have an employee who is collecting Workers’ Compensation and she’s arguing that her treatment information is confidential under the HIPAA Privacy Rule. What can I tell her?”

A. According to the U.S. Department of Health & Human Services, a covered entity is permitted to disclose an individual’s protected health information as necessary to comply with and to the full extent authorized by Workers’ Compensation law. (See 45CFR 164.512(l)).

Q. "Can I require a doctor's note when an employee is out?”

A. There is no 'yes' or 'no' answer to this question - the employer’s policies and relevant federal and state laws govern the answer. For sick leave, an employer may request a doctor’s note as part of its sick leave policy. The requested information must be limited to name of employee, date of doctor’s office visit, and expected time of incapacity to perform the job. Requesting a diagnosis could violate the American with Disabilities Act (ADA).

For the Family and Medical Leave Act (FMLA), employers can require certification from the employee’s health care provider. Generally, recertification is only permitted every 30 days or more.

For ADA, an employer can require a note as part of the accommodation process, if the need for accommodation is not apparent. The law also outlines the type of information that employers can request from doctors to determine if the impairment qualifies as an ADA disability and to learn more about accommodation options.

For Workers’ Compensation, employers can require a doctor’s release with or without restrictions, for an employee to return to work.

Q. “An employee needs to have a knee replacement for non-work related reasons. He wants to delay the surgery until after his scheduled vacation in two months. His job involves heavy lifting and we are concerned that he may injure himself. What can we do?”

A. If you have objective evidence and believe that the employee cannot safely perform his job, you may be able to require the employee to take a medical exam under the ADAs’ direct threat” provision. It’s important to inform the doctor of the employee’s essential job functions and ask if the employee can safely perform such functions with or without reasonable accommodation.