August 29 Tip of the Week

“Employee Medical Information”

            Although human resources professionals are not doctors, we are often asked to make determinations regarding an employee’s medical condition and its impact on the employee’s ability to do their job.  Nowhere is this more prevalent then when an employee goes out on a medical leave of absence and then, when it is time to return to work, the employee asks for additional time off, a change in their job duties, or some other accommodation that they say is necessary for them to be able to return to work. 

            Most employees who miss time off from work due to personal medical conditions are anxious to return to work and will do as soon as they believe they are able.  Over the years, however, I have found that some employees, in an effort to return to “normalcy” will push themselves to come back to work before they are ready.  This is a negative, in that opens the employee up to the risk of reinjury or places a greater burden on those around the employee who feel that they have to pick up the returning employee’s slack and cover for them and their inability to do the job. 

            The best way to protect against this is to ensure that you obtain certifications from the employee’s medical provider; this certification should be an analysis or an approval by the employee’s doctor that says that the employee is physically able to perform their job duties with or without an accommodation.  This type of medical certification protects the employer should the employee return to work and reinjure themselves or otherwise experience difficulties upon their return. 

            Unfortunately, as many human resources professionals know, doctors are susceptible to pressure from their patients and will often write notes that are “dictated” by their patients – this is true of both notes to write a person out of work as well as to write the person back to work.  How can a human resources professional protect against these types of notes? 

First, have the employee sign a HIPAA release, such as the one that can be found at this link (https://www.hipaajournal.com/wp-content/uploads/2017/09/HIPAA-Journal-sample-HIPAA-release-form-v1.pdf ).  This release opens the door for human resources to submit requests directly to the doctor and to provide clarifying information in response to any questions or issues the doctor might have regarding the employee’s fitness for duty.  Second, make sure that the employee’s doctor is given a copy of the employee’s well-written and detailed job description, which includes all of the physical demands the job entails.  This job description then serves as a reference for the doctor in making a true determination of the employee’s suitability to return to work and the true demands of the employee’s job.  Finally, don’t be afraid to send employees to your own occupational medicine provider for a more objective analysis of the employee’s ability to do their job.  These medical professionals are geared toward ensuring the employees are physically able to perform the duties of their position and look at it from a balanced perspective – not too skewed in favor of the employee or the employer.

To protect against employee claims of unfair treatment or discrimination on the basis of a disability, it is important for employers to have detailed and legally compliant policies related to leaves of absence, return to work, and accommodations. At myHRcounsel, we an assist you in being proactive and establishing such policies.  Further, when these types of issues arise, we can help you navigate them in such a way as to minimize your risk of lawsuits and liability.  Also, be sure to use the resources available in our HR Solutions Center.  They can also provide you with background information that can inform and assist you in dealing with these complicated employee medical issues.