brownbaggernov08

Brown Bagger

This section is set up to provide a ready-made Brown Bag Session for you to use with employees and/or managers. Use as is, or adapt this information for a general employee group. You may reproduce as many copies as needed.

Navigating the Paper Maze: Shedding Light on ADA, FMLA, and HIPAA ompliance with the federal Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), and the Health Insurance Portability and Accountability Act (HIPAA) is a complicated maze for employers.

Employees may fall under one, two, or all three of the laws, which seem to conflict with each other at times. Throw in periodic changes to these laws, and additional statutes and legislation, such as state Workers’ Compensation policies, and the Consolidated Omnibus Budget Reconciliation Act (COBRA), and it’s no wonder that many business owners feel like they’re drowning in a sea of alphabet soup!

It would take a series of articles to shed light on all legislation that affects employers and employees. However, it’s hoped that this article will make navigating this maze at least a little easier.

C

What is the Definition of ‘Disability’?

There is no list of medical conditions that are considered disabilities under the ADA. Basically, the ADA considers someone to have a disability if he/she has a physical or mental impairment that substantially limits one or more major life activities, such as walking, seeing, hearing, performing basic daily tasks, etc. To determine whether a particular employee has a disability, an employer may request medical documentation that shows whether the employee in fact has an impairment, and whether the impairment substantially limits one or more major life activities.

Myths and facts about the ADA are described in the Handout section on page 4. The remainder of this article will discuss some of the frequently asked questions about the ADA, FMLA, and HIPAA. Q&A: Americans with Disabilities Act (ADA) Q: What employers are covered under the ADA? A: Employers of 15 or more employees are covered under the ADA. Q: What is the purpose of the ADA? A: To prevent discrimination against “qualified November 2008

individuals with disabilities” — in other words, those persons who can perform essential functions of the job with a reasonable accommodation.

Q: When is an employee protected under the ADA? A: When he or she is a “qualified individual with a disability.” A disability is defined as a physical or mental impairment that substantially limits one or more of a person’s major life activities. An employer may require that documentation about the disability and its limitations come from an appropriate health-care professional, such as a nurse, physical or occupational therapist, psychologist, and/or a licensed mental-health professional.

Q: How would a reasonable accommodation be determined? Where can employers find out more about accommodations for persons with various disabilities?

A: In many cases, a reasonable accommodation will be obvious and can be made without difficulty and at little or no cost. Frequently, the individual with a disability will suggest a simple change or adjustment based on his or her life or work experience. An employer should always consult the person with the disability as the first step. In many cases, the employee will be able to provide ideas.

When this isn’t the case, the employee’s doctor may be able to provide suggestions. As stated, the best source of information is usually the person with the disability. If the individual is not certain what he or she needs, the Job Accommodation Network (www.jan.wvu.edu) and the U.S. Equal Employment Opportunity Commission (www.eeoc.gov) are excellent resources for guidance about accommodation recommendations.

Q: What does an employer need to know about interviewing job applicants with disabilities?

A: An employer may not make a pre-employment offer inquiry on an application form or in an interview as to whether, or to what extent, an individual is disabled. The employer may ask a job applicant whether he or she can perform specific job functions. Additional information is available on the EEOC website.

EA Report Brown Bagger 1

Brown Bagger Q: May an employer require an employee to return to work on “light duty”?

A: The ADA does not mandate that employers create light-duty positions to accommodate disabled employees. However, if an employer has a vacant light-duty position, reassigning the disabled worker to such a position may be considered a reasonable accommodation.

Q: May an employer require fitness-for-duty exams for returning employees?

A: Fitness-for-duty, or return-to-work exams may be allowed as long as they are “job related and consistent with business necessity.” In other words, the scope of the examination must not be overly broad, and it should be limited to what is needed to decide whether the employee is able to perform the essential functions of his/her job.

Q&A: Family and Medical Leave Act (FMLA) Q: What employers are covered under the FMLA? A: Employers of 50 or more employees are covered under the FMLA. This includes those on leave and those working part time.

Q: What is the purpose of the FMLA? A: To provide job-protected leave to employees who need time off due to a birth, adoption, an employee’s serious health concerns, or the serious health condition of a family member — including pregnancy. The FMLA also prohibits discrimination against individuals who exercise their rights under this law.

Q: When is an employee protected under the FMLA? A: The individual must be employed for at least 12 months; he/she must have performed at least 1,250 hours of service; and he/she must be employed at a worksite where 50 or more employees are within a 75-mile radius.

Q: How much time off can I take?

A: The FMLA provides the right to take 12 weeks of leave without losing his/her job. FMLA uses the term “family leave” to indicate time off to care for another person in the family — a newborn or newly adopted child, spouse, or a parent with a serious health condition. “Medical leave” refers to time off to seek medical treatment, or to recover from your own serious health condition.

Q: Can my husband also take time off when the baby arrives?

2 EA Report Brown Bagger

A: A husband may also take up to 12 weeks of leave under the FMLA to care for the baby. Both parents may take leave at the same time; you may overlap your leaves; or you may take them consecutively, as long as each parent’s leave occurs within one year of the child’s birth or adoption. Exception: If both parents work for the same employer, the employer may limit combined leave to 12 weeks during a 12-month period.

Q: Will I get my job back when I return to work after taking family or medical leave?

A: Your employer must give you either the same job you had before you left, or a position with comparable benefits, pay, working conditions, and seniority. Exception: If the job would have been eliminated or downgraded, or you would have been laid off if you had not taken leave.

Q: What happens to my health insurance while I am on family or medical leave?

A: The employer must continue to pay for health insurance coverage during the leave. If you typically contribute to the health insurance plan, you may be required to continue making usual payments while on leave. If you do not return to work, the former employer has no obligation to provide benefits but is probably required under COBRA to offer the opportunity to continue the same coverage, provided you pay the full cost.

Q: May an employer require an employee to return to work on “light duty”?

A: An employer may not compel an injured worker to accept light duty in lieu of taking FMLA leave. However, if an employee rejects an offer that is within his/her medical restrictions, the company may contest the employee’s continuing entitlement to Workers’ Compensation benefits.

Q: May an employer require fitness-for-duty exams for returning employees?

A: If an employer requires an employee returning to work to undergo fitness-for-duty exams, these should not be limited to those returning from FMLA leave. Regulations require employers to have uniform exams. This does not mean that employers must require fitness-for-duty certifications from all absent employees due to a serious health condition. Rather, there needs to be a uniform policy based on the nature of the illness or duration of the absence. The fitness-for-duty certification can be sought only for the specific health condition that caused the employee to take FMLA leave.

November 2008

Q&A: Health Insurance Portability and Accountability Act (HIPAA) Q: What is the purpose of HIPAA? A: HIPAA was designed to improve efficiency in the delivery of health care by standardizing electronic data, and to ensure confidentiality and security of health data through the establishment and enforcement of various standards.

Q: Who is affected by HIPAA legislation?

A: Virtually all health-care organizations — including all health-care providers, health plans, public health authorities, health-care clearinghouses, and self-ensured employers — as well as life insurers, information systems vendors, various service organizations, and universities.

Q: What does the HIPAA Privacy Rule do?

A: The HIPAA Privacy Rule created national standards to protect individuals’ medical records and other personal health information. It holds violators accountable, with civil and criminal penalties that can be imposed if patients’ privacy rights are violated. For patients, it means being able to make informed choices when seeking care and reimbursement based on how personal health information may be used. For more information, visit www.hhs.gov/ocr/hipaa/.

Q: What is the difference between “consent” and “authorization” under the privacy rule?

A: The rule permits, but does not require, a covered entity to voluntarily obtain patient consent for uses and disclosures of protected health information for treatment and payment. Covered entities that do so have complete discretion to design a process that best suits their needs. By contrast, an “authorization” is required for uses and disclosures of protected health information not otherwise allowed. When patient authorization is required, voluntary consent is not sufficient to permit use or disclosure of protected health information — unless it also satisfies the requirements of a valid authorization. An authorization gives covered entities permission to use protected health information for specified purposes, which are generally areas other than treatment, payment, etc., or to disclose protected health information to a third party specified by the individual.

Q: What does the HIPAA Privacy Rule require the typical health-care provider or health plan to do?

A: For the average health-care provider or health plan, the rule requires various activities, such as: Notifying patients about their privacy rights and November 2008

Brown Bagger how their information can be used; implementing privacy procedures; training employees so that they understand the procedures; designating an individual responsible for seeing that privacy procedures are adopted and followed; and securing individually identifiable patient records so that they are not readily available to those who do not need them.

The Privacy Rule also offers the flexibility to create customized procedures. For example, the training requirement may be satisfied by a small physician practice providing new employees with a copy of privacy policies and documenting that new members have reviewed them; whereas a large health plan may provide training through live instruction, video presentations, or interactive software.

Q: Are covered entities required to completely restructure existing workflow systems, including redesigning office space and upgrading computer systems, in order to comply with the HIPAA Privacy Rule?

A: No. Facility redesigns are not considered necessary. However, covered entities may need to make certain adjustments to minimize access, such as isolating and locking file cabinets or records rooms, or providing additional security, such as passwords, on computers maintaining personal information. Covered entities should also take into account the practicality of reorganizing various systems. For example, it may not be reasonable for a small practitioner who has largely a paper-based records system to limit access of employees to only limited fields in a patient record, while other employees have access to the complete record. In this case, appropriate training of employees may be sufficient. Alternatively, a hospital with an electronic patient record system may reasonably implement such controls, and therefore, may choose to limit access in this manner to comply with the Privacy Rule.

Additional sources: David Keefe, Attorney at Law, SPHR; Office of Disability Employment Policy (ODEP); U.S. Justice Department; National Partnership for Women & Families; www.hipaadvisory.com; and U.S. Department of Health & Human Services. Editor’s note: See also the August 2005 EAR, “Alphabet Soup: What Does it all Mean?” by Marilyn Gaipa.

EA Report Brown Bagger 3

Brown Bagger H A N D O U T More Suggestions for Navigating the Paper Maze 1) Recognize that employees returning to work may be covered by both the ADA and FMLA, and be familiar with specific requirements of both laws.

2) Notify employees that Workers’ Compensation leave will be counted toward an employee’s FMLA leave if this is the employer’s policy.

3) Recognize that an injured employee may also be covered under the ADA, and that an employer may be required to rely on medical documentation when making determinations related to the case.

4) Review light-duty programs, and do not force employees on FMLA to take light-duty jobs.

5) Review U.S. Department of Labor (www.dol.gov) and Department of Justice (www.usdoj.gov) guidelines available on their websites.

6) Be prepared. Have a “go-to” person (such as the EAP) when issues arise.

7) Develop a case-management team for difficult cases.

Source: David Keefe, Attorney at Law, SPHR.

Americans with Disabilities Act (ADA): Separating Myths from Facts Myth: The ADA requires businesses to spend lots of money to make existing facilities accessible.

Fact: The ADA is based on common sense. The law recognizes that altering existing structures costs more than making new construction accessible. The law only requires that public accommodations (e.g. stores, banks, hotels, and restaurants) remove architectural barriers in existing facilities when it can be done without great difficulty or expense. In other words, when it would not cause undue hardship. Inexpensive, relatively easy steps that can be taken include installing bathroom grab bars, lowering a paper towel dispenser, installing offset hinges to widen a doorway, or painting new lines to create an accessible parking space.

Myth: The ADA, along with other laws such as the FMLA, are squeezing out small businesses that cannot afford to hire human resource specialists to 4 EA Report Brown Bagger

advise them regarding the complexities of these laws.

Fact: It’s true that statutes and legislation that affect businesses can be complicated and time consuming to decipher. However, truly small businesses — those with fewer than 15 employees — are not covered by the ADA. Moreover, the FMLA only applies to employers with 50 or more employees. For employers who are covered, the ADA provides an undue hardship defense for “reasonable” accommodations that are very costly or burdensome. As the term implies, “reasonable” means the modification or adjustment must be feasible or plausible to the employer. Smaller employers can more easily establish undue hardship because they have fewer resources.

Sources: Office of Disability Employment Policy (ODEP); U.S. Justice Department.

November 2008