I. INTRODUCTION
In the course of managing employees, whether it be in the context of a request for accommodation or relating to an occupational safety issue, the question of how and when to make medical inquiries frequently arises. An employer must be sensitive to what information she can request, and to who has access to the medical information once it is in the employer's possession.
II. LIMITATIONS ON MEDICAL INQUIRIES-INTERACTION OF THE FMLA AND THE ADA
It is important to recognize that the methods that an employer might use to gather medical information to determine which, if any, of the protections an employee is entitled to under the Family and Medical Leave Act or Americans with Disabilities Act are themselves strictly, and differently, limited by the statutes. Under the ADA, an employer generally is precluded from making inquiries into the nature and extent of an employee's disability, except where such inquiries are job-related and consistent with business necessity. Thus, when an employee has requested an accommodation for a disability, including a request for leave, the employer may make the medical inquiries and examinations necessary to determine whether an accommodation is truly needed or would be effective. Under the FMLA, the employer can require medical certification of the need for leave, but the limitations on the subject and the nature of the inquiries are quite specific, and the FMLA Regulations warn the employer against seeking more information than is sought in the optional FMLA medical certification form, set forth as Appendix B to the Regulations. Instead, the FMLA regulations direct the employer who has reason to doubt the validity of the medical certification to obtain a second opinion at its expense. A third opinion may be obtained from a doctor approved jointly by the employer and the employee if the second does not satisfy either. The third opinion is binding on both, however, as to the legitimacy of the serious medical condition.
Thus, the information that lawfully can be obtained by the employer to assist it in assessing the reasonableness and efficacy of leave or a reduced work schedule as an accommodation under the ADA may be more extensive than could be required under the FMLA to certify the "serious health condition" of an employee seeking leave. Accordingly, employers will probably find a two-step process advisable where an employee is entitled to the protection of both statutes. The employee who claims a disability would first be subjected to the scrutiny permitted by the FMLA; if he passes muster under that test and then exhausts his FMLA leave, he could be subjected to the possibly more comprehensive examination or inquiries permitted under the ADA before additional leave could be required as a reasonable accommodation.
On return from work, ADA permits employers to require "fitness for duty" certifications on the grounds that they are "job-related and consistent with business necessity," so long as the scope of the inquiry is not overbroad. Similarly, the FMLA Regulations permit employers to have uniformly applied rules that require employees to perform fitness-for-duty certifications with respect to the particular health condition that caused the need for FMLA leave, and any return-to-work physical must comply with the ADA, although they must be given specific notice that such an exam will be required and the consequences of failing to do so.
Courts that have examined the interplay between the FMLA fitness-for-duty certifications and the broader return-to-work examination allowed by the ADA have reached slightly different conclusions. In Porter v. United States Alumoweld Co., Inc., 125 F.3d 243 (4th Cir. 1997), for example, the court held that the FMLA, which limits a fitness-for-duty certification to a "simple statement of an employee's ability to return to work," does not prohibit an employer from requiring a more extensive medical examination under the ADA. The plaintiff in this case, Raymond Porter, was a machine operator for U.S. Alumoweld who had a history of chronic back injuries. In November of 1993, Alumoweld placed Porter on a leave of absence and advised Porter that, before being reinstated to his position, he would be required to provide documentation from his doctors and therapists indicating that he would be able to perform the functions of his job. Approximately one month after Porter underwent surgery in April 1994, his physician wrote a note stating that Porter would be able to return to work safely and without restrictions. Shortly thereafter, Alumoweld contacted Porter's physician and asked him to perform a functional capacity evaluation so that Alumoweld could better assess Porter's ability to resume his job duties. When Porter failed to have the test performed, Alumoweld terminated his employment.
Porter subsequently filed suit, alleging violations of both the ADA and FMLA. Porter's claim that Alumoweld violated the FMLA by requiring him to undergo a fitness-for-duty exam was based on an FMLA regulation that provides that "fitness-for-duty certification" under the FMLA "need only be a simple statement of an employee's ability to return to work." Porter argued that Alumoweld had no right to ask for more than the "simple statement" that this regulation requires. The court held, however, that the FMLA's fitness-for-duty certification provisions are "distinct from the ADA prescribed exam," and that, when the ADA applies, the medical inquiries that it authorizes will not be limited by those allowed by the FMLA. Otherwise, the FMLA, "would be violated every time an employer requested a fitness-for-duty exam under the ADA, a request which requires the disclosure of more medical information than would be available from the FMLA's 'simple statement of an employee's ability to return to work.'" This decision thus stands for the proposition that in those instances where a medical examination is job-related and necessary to determine whether an employee can perform the essential functions of his job, an employer may require the employee to satisfy the fitness-for-duty requirements of both the ADA and FMLA.
Asserting an argument similar to that of Porter in U.S. Alumoweld, the plaintiff in Albert v. Runyon, 6 F.Supp.2d 57 (D. Mass. 1998) sought to avoid a psychiatric fitness-for-duty examination upon her return to work from FMLA leave. Specifically, the plaintiff argued that, if an employee provides the employer with an FMLA certification that does not indicate any continuing disability, the FMLA's prohibition against requiring information other than a "simple statement" of the employee's ability to return to work precludes an employer from requiring the employee to submit to a fitness-for-duty examination under the ADA. The court agreed, holding that there must be some business need for the examination independent of the fact that the employee has taken FMLA leave. Accordingly, as the court explained, "an employer may not order an employee returning from FMLA leave to submit to a fitness-for-duty examination because of that leave, or because of an underlying condition that the employee's health care provider has certified will not interfere with the employee's ability to work, or because the employer views the certification as inadequate for its own purposes. An employer only has a sufficient 'business need' to examine a returning employee where the employee's ongoing limitations may interfere with her ability to work."
III. CONFIDENTIALITY OF MEDICAL RECORDS
A. Confidentiality-the ADA and Beyond
Once an employer is in possession of medical records for an employee, the confidentiality of this information must be preserved to avoid running afoul of the various laws, state and federal, that protect the privacy interests of employees. As a first step, all medical records should be kept in a confidential file separate from the employee's general personnel file in a locked or otherwise secure storage area.
Maryland state statutory law provides that "A person to whom a medical record is disclosed may not redisclose the medical record to any other person unless the redisclosure is: (1) Authorized by the person in interest . . . ." That statute defines "disclose" as "the transmission or communication of information in a medical record, including an acknowledgment that a medical record on a particular patient or recipient exists." See Md. Ann. Code, Health General &#sect;&#sect; 4-301, 4-302.
The ADA imposes strict limitations on who may access medical information in an employer's possession when it relates to actual or possible disabilities. Specifically, the ADA provides that supervisors, managers and first aid/safety personnel may have access to certain of this information on a need-to-know basis. The only other person who should be allowed access, according to the ADA, is a governmental official investigating compliance with the ADA. 42 U.S.C. &#sect; 12112(d)(3).
It is wise for employers to treat all medical information in the confidential manner proscribed by the ADA as a matter of practice unless a valid exception applies that calls for broader access or a change in procedure.
B. Confidentiality of Medical Records vs. OSHA
The need for confidentiality of medical records presents a dilemma under OSHA. As discussed above, the ADA imposes strict confidentiality requirements on medical records. The OSH Act, in contrast, requires employers to provide employees, employee representatives with signed authorizations, and OSHA personnel access to such records in the interest of exposing potential hazards and their causes. In most instances, requiring an employee representative to present a release signed by an employee will protect an employer from a violation of the ADA's confidentiality provisions. This may not be the case, however, if the employer fails to adhere strictly to the terms of the authorization and releases additional information. Accordingly, employers should, prior to releasing the information, insure that the information being released is that which is authorized and nothing more.
Access to medical records by OSHA compliance officers poses an additional concern. Because OSHA compliance officers do not investigate compliance with the ADA, they are not among the individuals identified in the ADA as being authorized to obtain information about an individual's possible disabilities. Since compliance officers also do not typically present signed authorization forms from the employees, the employer is faced with the possibility of violating the ADA unless some specific OSHA standard requires the release of such information so that the employer obtains the benefit of the ADA "defense" mentioned above. In this regard, OSHA's regulation on access to employee exposure and medical records provides:
Each employer shall, upon request . . . assure the prompt access of [compliance officers] to employee exposure in medical records and to analyses using exposure in medical records.
It is unclear whether this language, or similar language contained in other, specific standards, will provide a defense to an employer releasing medical information to OSHA. Although the EEOC suggests in its Technical Assistance Manual that it will, in nearly half the states, this and other similar regulations exist and are enforced as a matter of state law. Even assuming such regulations provide protection, cautious employers may want to consider requesting the appropriate OSHA agency subpoena the records in order to protect its position. Even then, employers should be careful not to provide information not specifically requested.
IV. CONCLUSION
Employers should always tread carefully when inquiring into and handling medical records of employees. When requesting medical information, an employer should think carefully through the employee's situation and identify all of the laws that might be protecting the employee's privacy with regard to her medical records. Then, once medical information is in hand, it should be treated as highly confidential and access to it should be guarded and granted only on a need-to-know basis.
In the course of managing employees, whether it be in the context of a request for accommodation or relating to an occupational safety issue, the question of how and when to make medical inquiries frequently arises. An employer must be sensitive to what information she can request, and to who has access to the medical information once it is in the employer's possession.
II. LIMITATIONS ON MEDICAL INQUIRIES-INTERACTION OF THE FMLA AND THE ADA
It is important to recognize that the methods that an employer might use to gather medical information to determine which, if any, of the protections an employee is entitled to under the Family and Medical Leave Act or Americans with Disabilities Act are themselves strictly, and differently, limited by the statutes. Under the ADA, an employer generally is precluded from making inquiries into the nature and extent of an employee's disability, except where such inquiries are job-related and consistent with business necessity. Thus, when an employee has requested an accommodation for a disability, including a request for leave, the employer may make the medical inquiries and examinations necessary to determine whether an accommodation is truly needed or would be effective. Under the FMLA, the employer can require medical certification of the need for leave, but the limitations on the subject and the nature of the inquiries are quite specific, and the FMLA Regulations warn the employer against seeking more information than is sought in the optional FMLA medical certification form, set forth as Appendix B to the Regulations. Instead, the FMLA regulations direct the employer who has reason to doubt the validity of the medical certification to obtain a second opinion at its expense. A third opinion may be obtained from a doctor approved jointly by the employer and the employee if the second does not satisfy either. The third opinion is binding on both, however, as to the legitimacy of the serious medical condition.
Thus, the information that lawfully can be obtained by the employer to assist it in assessing the reasonableness and efficacy of leave or a reduced work schedule as an accommodation under the ADA may be more extensive than could be required under the FMLA to certify the "serious health condition" of an employee seeking leave. Accordingly, employers will probably find a two-step process advisable where an employee is entitled to the protection of both statutes. The employee who claims a disability would first be subjected to the scrutiny permitted by the FMLA; if he passes muster under that test and then exhausts his FMLA leave, he could be subjected to the possibly more comprehensive examination or inquiries permitted under the ADA before additional leave could be required as a reasonable accommodation.
On return from work, ADA permits employers to require "fitness for duty" certifications on the grounds that they are "job-related and consistent with business necessity," so long as the scope of the inquiry is not overbroad. Similarly, the FMLA Regulations permit employers to have uniformly applied rules that require employees to perform fitness-for-duty certifications with respect to the particular health condition that caused the need for FMLA leave, and any return-to-work physical must comply with the ADA, although they must be given specific notice that such an exam will be required and the consequences of failing to do so.
Courts that have examined the interplay between the FMLA fitness-for-duty certifications and the broader return-to-work examination allowed by the ADA have reached slightly different conclusions. In Porter v. United States Alumoweld Co., Inc., 125 F.3d 243 (4th Cir. 1997), for example, the court held that the FMLA, which limits a fitness-for-duty certification to a "simple statement of an employee's ability to return to work," does not prohibit an employer from requiring a more extensive medical examination under the ADA. The plaintiff in this case, Raymond Porter, was a machine operator for U.S. Alumoweld who had a history of chronic back injuries. In November of 1993, Alumoweld placed Porter on a leave of absence and advised Porter that, before being reinstated to his position, he would be required to provide documentation from his doctors and therapists indicating that he would be able to perform the functions of his job. Approximately one month after Porter underwent surgery in April 1994, his physician wrote a note stating that Porter would be able to return to work safely and without restrictions. Shortly thereafter, Alumoweld contacted Porter's physician and asked him to perform a functional capacity evaluation so that Alumoweld could better assess Porter's ability to resume his job duties. When Porter failed to have the test performed, Alumoweld terminated his employment.
Porter subsequently filed suit, alleging violations of both the ADA and FMLA. Porter's claim that Alumoweld violated the FMLA by requiring him to undergo a fitness-for-duty exam was based on an FMLA regulation that provides that "fitness-for-duty certification" under the FMLA "need only be a simple statement of an employee's ability to return to work." Porter argued that Alumoweld had no right to ask for more than the "simple statement" that this regulation requires. The court held, however, that the FMLA's fitness-for-duty certification provisions are "distinct from the ADA prescribed exam," and that, when the ADA applies, the medical inquiries that it authorizes will not be limited by those allowed by the FMLA. Otherwise, the FMLA, "would be violated every time an employer requested a fitness-for-duty exam under the ADA, a request which requires the disclosure of more medical information than would be available from the FMLA's 'simple statement of an employee's ability to return to work.'" This decision thus stands for the proposition that in those instances where a medical examination is job-related and necessary to determine whether an employee can perform the essential functions of his job, an employer may require the employee to satisfy the fitness-for-duty requirements of both the ADA and FMLA.
Asserting an argument similar to that of Porter in U.S. Alumoweld, the plaintiff in Albert v. Runyon, 6 F.Supp.2d 57 (D. Mass. 1998) sought to avoid a psychiatric fitness-for-duty examination upon her return to work from FMLA leave. Specifically, the plaintiff argued that, if an employee provides the employer with an FMLA certification that does not indicate any continuing disability, the FMLA's prohibition against requiring information other than a "simple statement" of the employee's ability to return to work precludes an employer from requiring the employee to submit to a fitness-for-duty examination under the ADA. The court agreed, holding that there must be some business need for the examination independent of the fact that the employee has taken FMLA leave. Accordingly, as the court explained, "an employer may not order an employee returning from FMLA leave to submit to a fitness-for-duty examination because of that leave, or because of an underlying condition that the employee's health care provider has certified will not interfere with the employee's ability to work, or because the employer views the certification as inadequate for its own purposes. An employer only has a sufficient 'business need' to examine a returning employee where the employee's ongoing limitations may interfere with her ability to work."
III. CONFIDENTIALITY OF MEDICAL RECORDS
A. Confidentiality-the ADA and Beyond
Once an employer is in possession of medical records for an employee, the confidentiality of this information must be preserved to avoid running afoul of the various laws, state and federal, that protect the privacy interests of employees. As a first step, all medical records should be kept in a confidential file separate from the employee's general personnel file in a locked or otherwise secure storage area.
Maryland state statutory law provides that "A person to whom a medical record is disclosed may not redisclose the medical record to any other person unless the redisclosure is: (1) Authorized by the person in interest . . . ." That statute defines "disclose" as "the transmission or communication of information in a medical record, including an acknowledgment that a medical record on a particular patient or recipient exists." See Md. Ann. Code, Health General &#sect;&#sect; 4-301, 4-302.
The ADA imposes strict limitations on who may access medical information in an employer's possession when it relates to actual or possible disabilities. Specifically, the ADA provides that supervisors, managers and first aid/safety personnel may have access to certain of this information on a need-to-know basis. The only other person who should be allowed access, according to the ADA, is a governmental official investigating compliance with the ADA. 42 U.S.C. &#sect; 12112(d)(3).
It is wise for employers to treat all medical information in the confidential manner proscribed by the ADA as a matter of practice unless a valid exception applies that calls for broader access or a change in procedure.
B. Confidentiality of Medical Records vs. OSHA
The need for confidentiality of medical records presents a dilemma under OSHA. As discussed above, the ADA imposes strict confidentiality requirements on medical records. The OSH Act, in contrast, requires employers to provide employees, employee representatives with signed authorizations, and OSHA personnel access to such records in the interest of exposing potential hazards and their causes. In most instances, requiring an employee representative to present a release signed by an employee will protect an employer from a violation of the ADA's confidentiality provisions. This may not be the case, however, if the employer fails to adhere strictly to the terms of the authorization and releases additional information. Accordingly, employers should, prior to releasing the information, insure that the information being released is that which is authorized and nothing more.
Access to medical records by OSHA compliance officers poses an additional concern. Because OSHA compliance officers do not investigate compliance with the ADA, they are not among the individuals identified in the ADA as being authorized to obtain information about an individual's possible disabilities. Since compliance officers also do not typically present signed authorization forms from the employees, the employer is faced with the possibility of violating the ADA unless some specific OSHA standard requires the release of such information so that the employer obtains the benefit of the ADA "defense" mentioned above. In this regard, OSHA's regulation on access to employee exposure and medical records provides:
Each employer shall, upon request . . . assure the prompt access of [compliance officers] to employee exposure in medical records and to analyses using exposure in medical records.
It is unclear whether this language, or similar language contained in other, specific standards, will provide a defense to an employer releasing medical information to OSHA. Although the EEOC suggests in its Technical Assistance Manual that it will, in nearly half the states, this and other similar regulations exist and are enforced as a matter of state law. Even assuming such regulations provide protection, cautious employers may want to consider requesting the appropriate OSHA agency subpoena the records in order to protect its position. Even then, employers should be careful not to provide information not specifically requested.
IV. CONCLUSION
Employers should always tread carefully when inquiring into and handling medical records of employees. When requesting medical information, an employer should think carefully through the employee's situation and identify all of the laws that might be protecting the employee's privacy with regard to her medical records. Then, once medical information is in hand, it should be treated as highly confidential and access to it should be guarded and granted only on a need-to-know basis.