I think my employer is violating HIPAA law

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Latest post 09-08-2012 5:32 PM by Drew. 11 replies.
  • 09-07-2012 3:48 PM

    I think my employer is violating HIPAA law

    Does an employee have to disclose to his employer the reason for seeing his/her physician (diagnosis and prognosis)?  Is that a violation of HIPAA?  Furthermore, can an employer penalize an employee for not disclosing this information (example, docking pay check)?

     

  • 09-07-2012 4:01 PM In reply to

    Re: I think my employer is violating HIPAA law

    John Franco:
    Does an employee have to disclose to his employer the reason for seeing his/her physician (diagnosis and prognosis)?  

    Under certain circumstances:  yes.  If the employee is requesting FMLA, workman's compensation, or ADA accommodation.  If you merely took time off for an appointment or were out sick and a physician's excuse was requested:  then no you don't have to tell them the details.

    John Franco:
    Is that a violation of HIPAA?

    No.  HIPAA prevents medical providers from disclosing the information.  An employer requesting it is not covered by HIPAA as you would be voluntarily giving the information.

    John Franco:
    Furthermore, can an employer penalize an employee for not disclosing this information (example, docking pay check)?

    If the employee isn't providing needed documentation for an absence the employer can refuse to pay sick time.  You must legally be paid for all time you actually work. 

    If it were me I would hand them a note from the physician stating an absence was medically necessary and the dates with the signature and nothing more.  If I attended an appointment they would get a note stating "Clydesmom had an appointment at our office on September 5, 2012 at 9:00 am."  Anything else I would not indulge. 

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 09-07-2012 4:01 PM In reply to

    Re: I think my employer is violating HIPAA law

    This doesn't involve HIPAA.  What would involve HIPAA is if your doctor unilaterally disclosed X without your consent.

    "Does an employee have to disclose to his employer the reason for seeing his/her physician (diagnosis and prognosis)?"

    This question is too broad.  Please describe the underlying situation in greater detail.

  • 09-07-2012 4:09 PM In reply to

    Re: I think my employer is violating HIPAA law

    "If the employee is requesting FMLA, workman's compensation, or ADA accommodation."

    I wouldn't lump in all these together.  With workers' comp, the employer will wind up having to find out about the injury/illness as regards to a claim, no?  As to FMLA, a worker can refer to needing to take time off to deal with a serious health condition and not disclose what the diagnosis/prognosis is.  If the employer expects a medical cert that it's entitled to seek under FMLA, that documentation doesn't have to disclose exact nature of the illness (unless the worker tells doctor it's ok).  If employer doesn't accept the cert at face value, it's free to pay for and expect worker to see a doctor of its choice to verify X, but even then, that doctor isn't entitled to willy-nilly tell the employer gory details (unless patient/worker says it's ok).

    "If you merely took time off for an appointment or were out sick and a physician's excuse was requested: then no you don't have to tell them the details."

    As to non-FMLA situations, employer's free to ask for why a worker is/was out ... to know whether it was something non-serious or whether there's any indication it's something that would fall under FMLA.  Employer can't know that it's only a matter of the flu or whatever unless they are given something other than "I ain't telling."

    As it relates to ADA, I'd research "ada disclosure of medical information" that results in documents such as: http://www.eeoc.gov/policy/docs/preemp.html.

     

  • 09-07-2012 4:11 PM In reply to

    Re: I think my employer is violating HIPAA law

    Thank you so much for your response.

    I'm not requesting workman's comp, ADA accomodation or FMLA.  I simply took 3 days off due to being sick.  That's it.  Policy is that if an employee takes 2 - 4 consecutive sick days he/she is required to submit a doctor's note, which I did....TWICE.  Both notes said pretty much what you decribed in the example:

    Date
    Out due to sickness
    Dates that I was out
    Signed by the doctor on letterhead"

    They then told me it wasn't enough; they wanted diagnosis and prognosis. I told them that I didn't feel comfortable giving them my personal medical information and that's when I was hit with the ultimatum: either do it or get docked for the 3 days. 

    I have a family to support and I'm afraid of losing my job, so now I feel obligated to give them what they want.

  • 09-07-2012 4:15 PM In reply to

    Re: I think my employer is violating HIPAA law

    While you may not feel comfortable, I don't know of any law prohibiting them from expecting specifics.  For all they know (and possibly you, depending on why you were out), this may be time they'd otherwise count as FMLA.

     

  • 09-07-2012 4:15 PM In reply to

    Re: I think my employer is violating HIPAA law

    Sorry, 3 days off needs a better reason than "out due to sickness."

    And the employer has every right not to pay you for the 3 days if you cannot satisfy him as to the reason you were out.

    In fact, he would likely be within his rights to consider the absence excessive and fire you.

    I rarely side with employers but in this case I suggest you get him what he wants.

     

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 09-07-2012 4:18 PM In reply to

    Re: I think my employer is violating HIPAA law

    And even if it's something like "flare-up from crabs" or some other embarrassing detail, I'm sure a compassionate doctor would be able to work with you on saying "flu" or something to indicate it's a non-communicable disease.  :)

  • 09-07-2012 7:51 PM In reply to

    • Qball
      Consumer
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    Re: I think my employer is violating HIPAA law

    Had same situation in which I had contracted pnuemonia and missed a whole week of work which violated a company attendence policy. Company gave me a 10 page questionaire to be filled out by doctor which appeared to be a search for information that might be protected under HIPPA. Doctor refused and did provide a note explaining reason for absence. Company accepted note.  So unless you have some kind of communicable condition it should be no problem.

  • 09-07-2012 8:11 PM In reply to

    Re: I think my employer is violating HIPAA law

    Chancey1:
    With workers' comp, the employer will wind up having to find out about the injury/illness as regards to a claim, no?

    Yes, WC is specifically covered in HIPAA and medical providers releasing medical information to employers under a claim are exempt from having to get the patient's permission.

    Chancey1:
    As to FMLA, a worker can refer to needing to take time off to deal with a serious health condition and not disclose what the diagnosis/prognosis is.  If the employer expects a medical cert that it's entitled to seek under FMLA, that documentation doesn't have to disclose exact nature of the illness (unless the worker tells doctor it's ok).

    EVERY bit of that is wrong.  FMLA forms specifically have a section the provider must fill out which includes the diagnosis and expected length of absence and provide for prognosis for recovery if indicated.

    Chancey1:
    If employer doesn't accept the cert at face value, it's free to pay for and expect worker to see a doctor of its choice to verify X

    This too is incorrect.  If the employee wants FMLA the burden is on them to provide the documentation to the employer as soon as is reasonably possible even in advance if able.  The employer has no legal obligation to pay for any physician visit to confirm eligibility for time off.  Until the employee complies the employer must consider the employee on FMLA and once the mandated deadline to produce the required documentation passes the employer may then take action if FMLA does not apply.

    Chancey1:
    As it relates to ADA, I'd research "ada disclosure of medical information" that results in documents such as: http://www.eeoc.gov/policy/docs/preemp.html.

    ADA does not cover short term temporary illness conditions such as a cold.  

     

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 09-08-2012 5:04 PM In reply to

    • cbg
      Consumer
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    • Joined on 12-21-2000
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    Re: I think my employer is violating HIPAA law

    It does not violate HIPAA for an employer to ask. It would violate HIPAA if the doctor released the information without permission.

    And while I understand that this is not a workers comp situation, just to clarify the above discussion - workers comp information is specifically excluded from HIPAA regs.

  • 09-08-2012 5:32 PM In reply to

    • Drew
      Consumer
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    • Joined on 03-30-2000
    • PA
    • Posts 49,509

    Re: I think my employer is violating HIPAA law

    The employer might have a reasonable need to know if it was safe for you to return to work--around me the requirement is for your own doctor to medically clear you for work if out for 3 + days plus it triggers right of employer to have you see thier doctor at their expense.

    Going golfing for 3 days was a common medical health need long ago --but a few guys got fired to that , ditto for gals with medically compulsive shopping trips.



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