October 10, 2007

Delphi Goes Fishing - and is Harpooned by the EEOC

Delphi, the auto parts maker working its way through bankruptcy, has a new problem. The U. S. Equal Employment Opportunity Commission (EEOC) has sued the company under the ADA for making illegal inquiries about employee medical conditions and retaliating against those who refused.

In 2004 Delphi implemented a policy requiring any and all workers returning from sick leave to sign releases permitting the company to access their medical records. While we can sympathize with the company's desire to ensure that employees are fit for work, this policy goes way beyond any such concerns. Apparently, the company required employees to sign this release, even if they only missed a day or two. If employees refused to sign, they were terminated.

"The ADA prohibits employers from making inquiries as to whether an employee is an individual with a disability unless the inquiry is shown to be job-related and consistent with business necessity," the EEOC stated in the complaint.

The application of the ADA in this situation is a bit of a stretch. Perhaps the EEOC could not find any statute that really fit the circumstances. (HIPAA does not quite fit, either.) Delphi is not discriminating against the disabled - they are inappropriately perusing medical records, under the dubious reasoning that a short absence from work inherently involves high risk in returning to work.

The Need to Communicate
There are a number of circumstances following sick leave where an employer might need to talk to the employee's doctor. For example, an employee might be prescribed a medication that impacts alertness and the ability to operate machinery. Or an employee with a non-work related injury might not be able to perform his or her regular job safely without some accommodation. Delphi's mistake - and it's a big one - is to require every employee taking sick leave for any reason to sign a medical release. This is not job and employee specific: it's the kind of fishing expedition that confidentiality requirements explicitly prohibit.

Employers can and should secure an informed "release for full duty" from the treating physician when the need arises. When the circumstances require it, employers should communicate with doctors to ensure that the employee and co-workers are safe. Employers can and should require employees to disclose any medical conditions or prescriptions that directly impact the ability to perform the work safely (so that reasonable accommodations can be provided). But that is a long way from assuming that any and every absence is cause for examining medical records. That's not business necessity; it's an invasion of privacy. Whether filed under HIPAA, the ADA or some other statute, it's one business practice that needs to stop immediately. If Delphi has any business savvy, they already will have taken steps to end this blatantly inappopropriate practice.

| 3 Comments

3 Comments

Jon - this is one that I agree with you 100%. Fishing expedition is the correct and even a gentle description. A full duty release being required is reasonable - assuming that medical treatment took place for those 1-2 day off times. Maybe since I am not from the internet, Big Brother generation, this smacks of a larger problem - what information is mine, what information of mine can be viewed by interested other parties, and finally what information of mine can be viewed by anyone? My fear is that less personal information is mine and more is migrating to larger audiences.

An employer that pays the employee even while the latter is out "sick" has to make sure that its sick leave policy is not being abused. Else pretty soon everybody will be out "sick" and production will grind to a halt. I think it's a fair trade-off -- "you want to be paid under our sick leave policy while absent from work, prove that you were really sick. Give us access us the medical record."

"Else pretty soon everybody will be out "sick" and production will grind to a halt."

I don't know, Mikk, that seems like a very pessimistic view of the world. In fact, there's actually been more of an issue with "presenteeism" (coming to work when sick) rather than absenteeism. The sick worker spreads his or her germs around the office and pretty soon everyone is out sick (no quotes).

My medical file is my business, and access to it does not belong to my employer. If they want proof they can ask for a doctor's note or similar - although many times this can be arduous. If you're out with the 24-hour flu or a bad cold you may not even go to the doctor in the first place.

The policy that my workplace has is fairly liberal. If I call in sick, they can't even ask what kind of illness I have (invasion of privacy), although they will usually ask how long I expect to be out (most times this is only a day or two). No note required. Paperwork is only involved if it is a more lengthy illness, such as an FMLA absence.

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This page contains a single entry by Jon Coppelman published on October 10, 2007 1:31 PM.

Breach of Trust: the impact of the WTC disaster on workers compensation was the previous entry in this blog.

Cavalcade of Risk and the Clinton Health Reform Plan is the next entry in this blog.

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