by Robert Dooley
V.P. Administration & General Counsel @ Medcor
Medcor operates clinics that have over 300,000 patient visits each year. As you can imagine, Medcor has had to deal with its fair share of tricky compliance issues that can occur in a workplace clinic. The following is one of those issues.
I’m Joe’s supervisor. I heard a rumor that Joe, who drives a forklift, is taking anti-seizure medication for a personal health issue. If I ask the Medcor clinic personnel, can they tell me what medications Joe is taking? This is a safety issue and I think I’m entitled to the information.
Generally, the answer is, “no,” for jobs not governed by the DOT, FAA, etc. As a HIPAA covered entity, Medcor is responsible for making sure that all Protected Health Information (PHI), including information about medications acquired by Medcor in the course of treating a patient is properly secured and not released to anyone, unless permitted by law. This means that unless the patient has executed a valid authorization, or unless the release of the information about medications is permitted or required by law, Medcor may not be able to tell the supervisor about the medication.
Employers must be careful when pursuing this information. Acquiring information about an employee’s prescription medications may implicate the ADA and other laws. Employers should obtain legal advice about how to properly implement comprehensive policies for screening for impaired employees. Employers should consider limiting the application of these policies to safety sensitive positions, and not to all employees. The policy should contain a legally vetted definition of “safety-sensitive position,” such as a position where, “even a momentary lapse of concentration or attention could result in injury to the employee or others, or damage to property or the environment.” The policy should have a list of all safety sensitive positions that meet the requirements of the definition. All safety sensitive positions should have job descriptions that include as an essential safety function, “the ability to work in a constant state of alertness and safe manner,” or equivalent language. Policies should require clearance from the employee’s physician after the physician has reviewed the employee’s job description and the definition of safety sensitive position. The policies should limit disclosure to designated individuals in HR and generally not permit disclosure to supervisors.
There are ways prescription information can be obtained by an employer. The best way is for the employee/patient to execute a proper authorization, which would allow the clinic to provide the prescription information to the employer. The authorization must meet all the requirements of HIPAA and any applicable state law. The authorization should be part of any company policy dealing with impaired employees.
Armed with proper comprehensive policies and procedures, employers can protect themselves and others from impaired employees.
Author: Robert E. Dooley joined Medcor in 2005. Bob’s responsibilities include regulatory compliance, contracting, and general administration. He also oversees operations at several on-site clinics. http://medcor.com.
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