ADA limits release of info but not to employee’s union
Union entitled to info in accommodation disputes
Question: We find ourselves caught in a dispute between our client and the employee’s union over the release of medical information. The union wants medical information about an employee’s injury so it can be used in settling a dispute about reasonable accommodations, but the employer does not want us to release the information. The employer’s primary excuse is that releasing the information would violate the confidentiality requirements of the Americans with Disabilities Act (ADA). Is that true? If not, what do I do about the conflict?
Answer: You may have a problem regarding how to satisfy your client, but it appears the ADA is no excuse for refusing to give medical information to a union.
The Equal Employment Opportunity Commission (EEOC) in Washington, DC, is the governing body that makes judgment calls on how to interpret the ADA. It recently dealt with a case similar to yours, in which an employer and union disagreed over the release of medical information about a union worker. In a letter to the National Labor Relations Board in Washington, DC, EEOC Legal Counsel Ellen J. Vargyas explained that the ADA does not prohibit the release of medical information in those circumstances.
In a copy of the letter obtained by Occupational Health Management, Vargyas says that "the ADA permits an employer to give a union, in its role as bargaining unit representative, medical information necessary to the ADA reasonable accommodation process to enable the employer and union to make reasonable accommodation determinations consistent with the ADA." In simple terms, it’s OK to give the information to the union.
The EEOC attorney goes on to explain that in a unionized workplace, the union and employer both participate in determining what is a reasonable accommodation for a worker. "It is the Commission’s position that, where no other reasonable accommodation exists, the employer and union are jointly obligated to negotiate with each other to provide a variance if it will not impose undue hardship."
Accordingly, medical information necessary for that combined effort must be shared. The information should be shared only with decision-makers and necessary consultants, all of whom are required to keep the information confidential.
So the confidentiality provisions of the ADA do not prohibit providing the medical information to appropriate union representatives. But if it is clear that your client, the employer, does not want that information provided to the union, you are in a tough spot.
Ultimately, you must comply with the law. If that means telling your client that the records must be released to the union against your client’s wishes, that’s what you have to do. That can be a difficult situation if you have never discussed records confidentiality with your clients, notes Annette B. Haag, RN, COHN, president of Annette B. Haag & Associates in Simi Valley, CA, and past president of the American Association of Occupational Health Nurses (AAOHN) in Atlanta.
Talk to clients before issues arise
She advises explaining the applicable laws and rules to the client and emphasizing this is not your own judgment call or preference. Rather it is simply what is required of the health provider and employer. And if you have not already done so, she suggests meeting with each client to discuss these issues before they arise. It is best to establish a policy upfront concerning the release of medical records and then brief each client on that policy when they first join your program.
"Employers usually have no idea what is confidential, what can be released, and under what circumstances," Haag notes. "You need to sit down with the employer and very nicely explain all the different levels of confidentiality, government requirements, how state laws apply, and other things they won’t know about."
Having a formal policy in place and alerting your clients to it, will alleviate many of the disputes, such as this one, with the client and the union. To formulate the policy, Haag suggests working with an attorney familiar with records confidentiality. She also advises consulting a position statement issued recently by the AAOHN.
"Confidentiality of Health Information" was last revised in May 1996. The position statement advocates tightly controlling employee medical records and notes that there are three levels of confidentiality. Level 1 information is the least tightly controlled. It includes information required by law in some circumstances, such as data on occupational illnesses and injuries, exposure data, and information derived from special examinations.
Info given on need-to-know basis only
Level 2 information assists human resource management. That includes information obtained from job placement and provider health surveillance and other exams to determine ability to work. For both Level 1 and Level 2 information, disclosure can be made to the employee or to the employee’s designated representative with appropriate written consent. Information is disclosed to management only on a need-to-know basis and only in reference to the employee’s ability to work.
The most highly protected information is Level 3, personal health information such as treatment for non work-related health problems or family counseling. With this information, no disclosure is made to management or regulatory agencies. The information can be disclosed to health insurance providers with appropriate written authorization.
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