Posted by marykeating on August 27, 2010 under Workplace privacy, disability discrimination | 
A local hospital, the Baltimore Washington Medical Center, is accused of forcing out injured employees in violation of the Americans with Disabilities Act and HIPAA. The class action lawsuit filed this week in federal court alleges that the hospital routinely insists that employees returning from medical leave undergo a medical examination by its own physician. The physician then is likely to opine that the employee is not capable of returning to work, contrary to the worker’s own doctor’s opinion. According to the suit, the hospital’s physician uses confidential medical information without the employee’s consent; on the other hand, the physician takes almost no note of the job requirements in deciding that the employee cannot do her job. Therefore there is no interactive process, as required under the ADA, to determine if some reasonable accommodation could keep the employee working.
I have seen this pattern followed by other employers. Fitness for duty exams are legal. But they can be misused. The physician enjoys the cachet of the highly trained professional, who is allegedly worrying only about the employee’s health and well-being. Yet in the hospital setting especially, the physician has a built-in conflict of interest. Even outside the hospital, the fitness for duty exam is performed by someone paid by the employer, and therefore the doctor’s independence may be compromised.
Posted by marykeating on October 24, 2009 under Employment benefit issues, Severance agreements |
I know I’m not the only one who’s a little leery of the charge ahead toward electronic access of health records. I’m not a Luddite, I use technology for hours every day, and can’t completely remember life without the computer. And when I handle a long-term disability case, I LOVE receiving medical records that are typewritten, not written in that arcane code and famously bad handwriting.
But the assumption that every American’s complete health history should be available for nationwide electronic exchange and use scares me a little. HIPAA, the Health Insurance Portability and Accountability Act, governs the disclosure of health information. A new law has added to the mix, called the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”), part of the American Recovery and Reinvestment Act of 2009. The law and its regulations erect standards intended to minimize disclosures. This new law also sets out a lot of requirements for notifications that are necessary in the case of a breach of the privacy provisions. Specifically, the person whose privacy has been breached is entitled to notice.
The problems are: what if notice is not given; and what if it is? In the first instance, the person with the divulged health information has suffered a loss of privacy, but may never know. So, enforcement of this law is not going to be easy without whistleblowers or honorable companies holding the information.
In the second instance, privacy is breached, and the person is so notified. Now what is there to do? As of now, only the federal or state government can pursue the discloser and seek penalties. The penalties can get large; for example, for wilful violation which is not corrected, the maximum penalty is $50,000. But this still deprives the individual of control, not to mention the damages. An individual whose health information breach leads to the potential for identity theft can act quickly, and often avoid the worst of the damage. (See the Federal Trade Commission site for a step-by-step guide to dealing with identity theft.) And a violation could lead to a state case for invasion of privacy. Damages are difficult to measure in those cases, though.
This situation is similar to what we often face in considering severance agreements. It is typical for the company and employee to promise not to disparage each other. But what if they do? How do you prove the damages? In some cases, you just have to trust the good faith of the other party, because the prospects of enforcing a promise like that are dim.
