Employee Benefits Risk Management
Protect Employee's Privacy
Be sure that all information regarding the health of an employee or a member of their family is kept confidential.
Even if they freely discuss their medical conditions with other employees, do not assume that it is O.K. for anyone else, particularly management to do so.
Communicate Early And Often
Health care costs are going to go up three times the cost of living in the next two years.
One of the largest contributing factors is the cost of prescription drugs.
People are living longer in part due to the new, but expensive prescription drugs that have become available over the past few years.
Employees don't like surprises, so they need to be prepared for these increases as well as the fact that the company may not be able to absorb all of these increases.
Employees need time to "soak in" the information and should not be expected to do it quickly.
They tend to accept this kind of news much better if Dealers form a task force or committee made up of the heads of the various departments to study the increases or changes and make recommendations regarding deductible increases and other ways of mitigating the impact of these cost increases.
Be OK With Acceptance
Do not expect that employees will necessarily agree with or approve of the changes. That said, most employees are probably more ready to accept change than companies think, particularly with this issue receiving so much media attention recently.
An employer must keep any medical information on applicants or employees confidential, with the following limited exceptions:
- supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations
- first aid and safety personnel may be told if the disability might require emergency treatment
- government officials investigating compliance with the ADA must be given relevant information on request
- employers may give information to state workers' compensation offices, state second injury funds or workers' compensation insurance carriers in accordance with state workers' compensation laws
- employers may use the information for insurance purposes.
Below are some commonly asked questions about the ADA's confidentiality requirements.
Q. May medical information be given to decision-makers involved in the hiring process?
A. Yes. Medical information may be given to -- and used by -- appropriate decision-makers involved in the hiring process so they can make employment decisions consistent with the ADA. In addition, the employer may use the information to determine reasonable accommodations for the individual. For example, the employer may share the information with a third party, such as a health care professional, to determine whether a reasonable accommodation is possible for a particular individual. The information certainly must be kept confidential.
Of course, the employer may only share the medical information with individuals involved in the hiring process (or in implementing an affirmative action program) who need to know the information. For example, in some cases, a number of people may be involved in evaluating an applicant. Some individuals may simply be responsible for evaluating an applicant's references; these individuals may have no need to know an applicant's medical condition and therefore should not have access to the medical information.
Q. Can an individual voluntarily disclose his/her own medical information to persons beyond those to whom an employer can disclose such information?
A. Yes, as long as it's really voluntary. The employer cannot request, persuade, coerce, or otherwise pressure the individual to get him/her to disclose medical information.
Q. Does the employer's confidentiality obligation extend to medical information that an individual voluntarily tells the employer?
A. Yes. For example, if an applicant voluntarily discloses bipolar disorder and the need for reasonable accommodation, the employer may not disclose the condition or the applicant's need for accommodation to the applicant's references.
Q. Can medical information be kept in an employee's regular personnel file?
A. No. Medical information must be collected and maintained on separate forms and in separate medical files.26 An employer should not place any medical-related material in an employee's non-medical personnel file. If an employer wants to put a document in a personnel file, and that document happens to contain some medical information, the employer must simply remove the medical information from the document before putting it in the personnel file.
Q. Does the confidentiality obligation end when the person is no longer an applicant or employee?
A. No, an employer must keep medical information confidential even if someone is no longer an applicant (for example, s/he wasn't hired) or is no longer an employee.
Q. Is an employer required to remove from its personnel files medical information obtained before the ADA's effective date?
A. No.
For questions regarding Human Resources or employment regulations you may want to contact Jennifer McBennett of Seay Management Consultants at 407-426-9484 or email her.