In Part 1 of the article on this topic, I identified ten critical questions about medical evidence and answered five of them. Remember, workers compensation and detailed FMLA discussions are for future articles. In this article, we’ll look at the following:
7. Once the information is received, how should it be treated? Is the provided information confidential and if so, who may see it?
8. When can a supervisor require or offer a medical examination? Who pays? Who picks the physician?
9. What do third parties such as the Merit Systems Protection Board or the Equal Employment Opportunity Commission have to say about all this?
10. Where is help available for supervisors facing these problems?
What does a supervisor do if the submitted information is unresponsive or unacceptable in form or otherwise?
It depends. If it’s a leave abuse issue and a letter of requirement or restriction has been issued, then we’re talking about taking a disciplinary action or letters leading to discipline (warning, counseling, etc.) for the employee’s failure to follow the instructions given. If there is a discipline or performance related problem and the employee is claiming a disabling condition is causing the problem, it is the employee’s responsibility to produce medical evidence to support the claim. If the employee refuses or is unable to provide medical documentation you are free to act on the basis of the information available to you.
OPM’s regulations at 5 C.F.R. 339 severely limit agency authority to demand medical information from employees while recognizing the need of Agencies to manage. If the employee does not come forward with medical evidence specifically supporting the claim, take the disciplinary or performance action as appropriate.
Once the information is received, how should it be treated? Is the provided information confidential and if so, who may see it?
The Privacy Act of 1974, 5 U.S.C. Sect. 552a provides guidelines for the disclosure of information by limiting access to personal information contained in record systems and mandating certain management safeguards for such records. Any Federal employee may be found guilty of a misdemeanor and fined up to $5,000 for willfully disclosing information protected by the Privacy Act to any unauthorized person or agency.
Whether files supervisors keep on employees are systems of record and covered by the Act is meat for a legal treatise, but most agencies strongly encourage supervisors and managers take steps to ensure the confidentiality of employee medical information. As you’ll see later on in the article, OPM weighs in on this under certain circumstances.
One of the comments to Part One of this article claimed that a supervisor was joking with other supervisors about an individual’s medical condition. That kind of behavior, if true, would certainly create a basis for a corrective or disciplinary action against the supervisor.
Medical information provided by an employee is generally considered accessible only to those with a “need to know”. This might include higher levels of management, human resources advisors, agency medical staff and perhaps, at some point, legal staff. It would be very rare for medical information to be made available to coworkers. Examples might include the presence of infectious disease or situations in which the affected person may present a danger to coworkers.
In short, medical information should be treated as confidential, locked up and seen only by those who have an official reason to see it.
When can a supervisor require or offer a medical examination? Who pays? Who picks the physician?
OPM strictly regulates the ordering and offering of medical examinations. Medical examinations may only be ordered, with a couple of rare exceptions that supervisors don’t generally play in, if a position has medical standards. OPM lists 30 or so such positions on its website. When you look them over, it’s fairly obvious why.
Most Federal positions don’t have medical standards. Some should and a diatribe could be composed about some agencies’ laziness or worse in not developing such standards. Regardless, most Feds cannot be ordered to a physical examination.
Examinations may be offered as OPM’s regs say “…in any situation where the agency needs additional medical documentation to make an informed management decision.” OPM also says that offered examinations will be paid by the agency unless the purpose is to get a benefit for the employee. In that case, the employee must pay. Examinations offered or ordered are also subject to additional specific confidentiality requirements. (5 CFR 293 Subpart F)
Offered examinations are discretionary on the part of the agency. Occasionally an offer is made to test the seriousness or accuracy of an employee claim but most offers are made because the Agency needs information and the employee may be having doctor troubles. Getting medical information out of a physician is no easy task for the employee. People don’t generally attend medical school so they can complete lengthy forms or answer agency questions about one of their future patient’s employment problems. Employees may also lack the resources to pay for required information. Agencies should be careful here not to create a past practice, a basis for a claim of disparate treatment or another equally troublesome result of an otherwise good intention.
Document the offer and why it was made. Remember the burden is the employee’s so think carefully before you commit your agency to shouldering it.
What do third parties such as the Merit Systems Protection Board or the Equal Employment Opportunity Commission have to say about all this?
EEOC publishes “Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA)” to explain when it is permissible for employers to make disability-related inquiries or require medical examinations of employees. I strongly recommend that you read this if you are involved in soliciting medical information from employees.
EEOC makes it clear that it considers this guidance applicable to the Federal sector. This guidance says, in essence, that if an agency is acting on a job-related need and consistent with business necessity, it can ask for “reliable” information “sufficient” to determine whether a disability subject to reasonable accommodation exists.
On a side note, the guidance says something very interesting in answer to a straw man question: “May an employer require that an employee, who it reasonably believes will pose a direct threat, be examined by an appropriate health care professional of the employer’s choice?” Answer “Yes”. I don’t know how OPM views this piece of guidance based on 5 CFR 339 but at least you won’t get in trouble with EEOC if you do it.
MSPB generally supports agency requirements on employees to provide medical information and sustains actions where the employee claimed the existence of a medical excuse for bad performance or conduct but refused to back it up with evidence. The Board’s lead case appears to be Patterson v. Department of the Air Force, 74 M.S.P.R. 648 (1997).
Where is help available for supervisors facing these problems?
Some agencies are fortunate to have physicians either on staff or available under contract to help managers make medical decisions. That’s right, the decisions are yours. Ask what medical advisory resources are directly available to you as a supervisor. If the answer is none, suggest your HR staff contact Federal Occupational Health. FOH offers advisory service contracts to Federal agencies in need of medical advice.
All agencies at some level have employee relations staff who are trained and/or experienced in advising managers on dealing with leave and medical problems. Increasingly, EEO staffs are developing expertise in reasonable accommodation. My advice is to involve an experienced employee relations advisor to help you coordinate with the other advisors or to get you help if it’s not easily available.
Medical issues and the requirement on employees to supply medical information when reasonably needed can get very complicated. As the workforce becomes more familiar with reasonable accommodation and agency responsibilities under the Rehabilitation Act, medical issues will achieve a much higher visibility within management. Get ready now.
As usual, anything resembling an opinion is mine and mine alone.