Principles for Public Safety Employment

B. W HAT I NFORMATION IS AN E MPLOYER E NTITLED TO R ECEIVE F OLLOWING A F ITNESS FOR D UTY E XAMINATION ? Under the Confidentiality in Medical Information Act (CMIA), unless written authorization is received from an employee, an employer is only entitled to know whether the employee can perform the essential functions of the job. The employer cannot be advised of the medical cause of an employee’s inability to perform. 314 If an employee requires a reasonable accommodation or is otherwise unable to perform the essential functions of the job, the employer is entitled to know the functional limitations of the employee’s ability to perform the job (e.g., the employee cannot stand for extended periods of time; the employee cannot lift objects weighing more than 25 pounds). 315 If there is any doubt, an employer should not be afraid to seek clarification from the examiner concerning what an employee can and cannot do. C. T HE H EALTH I NSURANCE P ORTABILITY AND A CCOUNTABILITY A CT OF 1996 The federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a statute designed to protect and regulate physicians’ disclosure of confidential and private medical information. 316 Information received by an employer as a result of a fitness-for-duty exam is likely not prohibited under HIPAA. When the Department of Health and Human Services implemented the HIPAA Privacy Regulations, it noted that certain medical records maintained by an employer ─ in its role as an employer ─ were not subject to the HIPAA regulations. Those medical records include:

“medical information needed for an employer to carry out its obligations under FMLA, ADA, and similar laws as well as files or records related to occupational injury, disability insurance eligibility, sick leave requests and justifications, drug screening results, workplace medical surveillance, and fitness-for-duty tests of employees.” 317

As a result, even if an employer is a covered entity under the HIPAA regulations, its use of medical information for work-related purposes probably will not result in a HIPAA violation. The CMIA, of course, may still apply. D. W HAT I NFORMATION C AN THE E MPLOYER G IVE A D OCTOR ? Unless a health care professional is regularly called upon to treat a specific group of employees (e.g., a police department may regularly send officers to a particular physician for fitness for duty examinations), he or she may not have the requisite knowledge of a position to know what the essential functions of the job are, let alone make a determination that an employee can or cannot perform those functions.

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 99