Confidentiality of Medical Records

                                                                                     April 16, 2008

  

M E M O R A N D U M

 TO:      IRS Chapter Presidents

 RE:            Confidentiality of Medical Records

 SUMMARY:        Our contract and various federal regulations provide that employee medical information be protected.  This memo gives an overview of this important issue.

 This issue of confidentiality of employee medical records is of primary concern to employees and union representatives and arises very frequently.  I wanted to provide you with an overview of this important matter which may provide you and your stewards and employees with a first resource to review when faced with this issue.

 Employees are required to furnish medical documentation in three main instances.

 1.      When substantiating a sick leave request that exceeds three (3) consecutive workdays (Article 34, Section 3A) or when the IRS has reasonable grounds to question if an employee is properly using sick leave (e.g., sick leave is used frequently or in unusual patterns or circumstances) or when an employee is on a leave restriction letter  (Article 34, Section 3C);

 2.      When the employee requests a reasonable accommodation per the Rehabilitation Act; and

 3.      When an employee requests leave pursuant to the Family Medical Leave Act (FMLA).

 Initially, it is important to note that our collective bargaining agreement provides protections for medical records.  Article 34, Section 6 requires that the IRS “treats as confidential any medical information given by the employee in support of a request for sick leave.”  This provision makes clear that the IRS “may disclose such information subject to its Privacy Act obligations for work related reasons on a need to know basis only.”  Furthermore, Article 34, Section 3C (1) and 2 provides that employees may choose to provide medical information requested by the IRS in connection with a request for sick leave that includes “diagnosis or prognosis” information “only to Employer representatives who are medically certified.”  As you know, this would be the Federal Occupational Health (FOH) medical professional.  FOH is a component of the U.S. Public Health Service which in turn is part of the Department of Health and Human Services and the IRS contracts with FOH to provide this service.

 We raised this issue of confidentiality of medical records last year at the National LMRC meeting and in response an All Managers Memo prepared by the IRS Director of Workforce Relations was issued reinforcing these contractual provisions.  This memo is attached and states in pertinent part:

 The purpose of providing medical documentation only to a medically certified Employer representative is to protect the employee’s privacy.  The medically certified Employer representative will advise the manager regarding whether the illness has incapacitated the employee for work during the absences in question, when the employee’s condition would be expected to improve and if any accommodations requested would be appropriate based on the medical condition…….It should be noted a manager is not allowed to see the medical documentation that is provided to the medically certified Employer representative unless the employee wishes to consent and sign a medical release.

I have also attached the FOH “Authorization for Disclosure of Information” form which the employee must sign for the FOH doctor to gain further information from the employee’s treating medical professional.  The Privacy Act Notice is also attached.  The decision for an employee to sign this form varies from case to case depending on his/her medical condition, whether the employee is requesting sick leave, FMLA leave, or a reasonable accommodation and other factors.  Generally, if the employee’s medical condition is psychiatric, requires intermittent use of leave, or is complicated/not readily apparent having the employee’s treating medical professional explain the employee’s condition as succinctly and clearly as possible on the front end for the FOH doctor to review and keeping the manager out of the discussion is the recommended course unless the manager has been supportive of the employee.

 There are additional rules when dealing with requests for reasonable accommodation which may be governed by the Rehabilitation Act of 1973 and the FMLA.  First, this memo will discuss reasonable accommodation issues with respect to the confidentiality of medical records under the Rehabilitation Act.

 The Equal Employment Opportunity Commission (EEOC) has held that an agency violated the Rehabilitation Act when the complainant’s former supervisor placed a letter from the complainant’s physician discussing a diagnosis of work-related stress in his regular employee performance folder and then provided that file to the new supervisor when complainant transferred to another unit.  Higgins v. Dept. of the Air Force, 103 FEOR 404.  EEOC

No. 01A13571 (May 28, 2003).  The EEOC found there was no demonstrated need for the new supervisor to be informed of the complainant’s prior medically-related leave or absences from work, and the physician’s letter placed no work restrictions on the employee.  This case is significant because normally a person bringing a claim of disability discrimination must demonstrate as a threshold issue that they are a “qualified individual with a disability.”  Here, the EEOC found that The Rehabilitation Act places no limitations against improper disclosure of confidential medical information to individuals with disabilities and ordered that all documentation containing medical information be removed from complainant’s work file, that the agency pay complainant’s reasonable attorney’s fees and costs, and that the agency post a notice of the finding of the discrimination for 60 days.

 In another case, the EEOC found that the agency committed a per se violation of the Rehabilitation Act when a supervisor wrote an evaluation for the complainant in connection with a promotion.  The supervisor wrote “Due to [employee’s] work restrictions placed by Department of Labor, she cannot be utilized in a new assignments and responsibilities,” The EEOC found that this statement had nothing to do with the employee’s ability to perform the duties of the Confidential Secretary position and the statement was an unnecessary referral to her medical restrictions without any clear business necessity or relationship to her performance.  Thompson v. Postal Service, 99 FEOR 1047, EEOC No. 01965932 (October 6, 1998).  Since it was found that the employee would not have been selected for the position even absent this discriminatory statement, no compensatory damages were awarded, just a cease and desist and a posting.

 In Spencer v. Dept. of Health and Human Services, 104 FEOR 368. EEOC

No. 01A30525 (April 19, 2004), the EEOC found that an HR Specialist who sent an e-mail disclosing an employee’s diagnosis of Type 2 Diabetes to people who were not supervisors and were not involved in the employee’s reasonable accommodation requests violated the law and ordered EEO training and possible disciplinary action against the HR Specialist.

 EEO did award $3,000 in compensatory damages (reduced from $30,000) finding that the agency discriminated against the  employee on the basis of disability when an EEO Counselor improperly disclosed the employee’s disability to management when investigating another employee’s EEO complaint.  Patterson v. Dept. of Air Force, 104 FEOR 176, EEOC

No. 07A20128 (December 22, 2003).

 Leave under the FMLA is different from requesting a reasonable accommodation.  Employees are entitled to FLMA leave to care for family members or themselves when they suffer from a serious medical condition.  An employee who requests FMLA leave is often required to submit a medical certificate under OPM’s regulations, 5 CFR 630 1207 (b).  The medical certificate should include the date the condition commenced, the probable duration of the serious health condition, “appropriate medical facts” (general statement as to incapacitation, examination, and treatment) and that the employee is unable to perform one or more essential functions of the job.  Most employees use DOL Form WH-380 which contains the format for answering these questions.

 The IRS cannot demand more personal or confidential medical information in the written medical certification beyond that specifically required by the regulation, 5 CFR 630 1207(c).  An agency cannot contact the employee’s health care provider unless the employee authorizes it in writing whether to allow such authorization.  This can be a difficult question and one that needs to be assessed on a case-by-case basis.

 Like all medical information provided, these medical records must be maintained separately.  5 CFR 630 1207(k).  Supervisors do not have a “need-to-know” of the full contents of the medical certificate because they are not qualified to determine whether the medical condition qualifies as a serious health condition.  All the supervisor needs to know is whether a serious health condition exits so that leave can be approved and that confirmation is provided by the FOH doctor.

 If the IRS breaches the contractual or FMLA requirements concerning the confidentiality of medical records which were created for purposes of the FMLA, the employee has the option of filing a grievance or pursuing a Privacy Act claim.  If such a situation arises, it is important to check with your National Field Representative.

 The confidentiality of employee medical records is a very sensitive subject, and many times employees are faced with being pressured to disclose private information to their manager in order to avoid AWOL charges.  This does not have to be the case, and knowledge of these rights can be extremely valuable when assisting employees who are in need of leave or reasonable accommodation due to medical issues.

                                                                       

                                                                                    Colleen M. Kelley

                                                                                    National President