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Be Wary of Overbroad Medical Releases for Fitness-for-Duty Exams!

Posted by Barbara J. Zabawa | Jul 31, 2016 | 0 Comments

In a recent settlement with the EEOC, Cummins Power Generation paid $87,000 to resolve a disability lawsuit that involved an overbroad medical release form used by a fitness-for-duty vendor.  The form asked Cummins' employees to release medical record information that went beyond what was needed to determine whether the employee could meet the job requirements.  Another vendor used by Cummins used sought family medical information from employees.  When an employee refused to sign both releases, Cummins terminated the employee.

Cummins argued that the vendors who drafted the releases should have been sued, not Cummins.  Yet, the EEOC's position was that the employer, not the vendor, is liable for Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) violations related to the releases for medical record information, regardless of whether the vendors were also involved in the discrimination.

Although the EEOC's arguments about who is responsible for the content of medical releases seems to let vendors off the hook, vendors who create medical release forms should do so in compliance with the law; employers may rely on vendors for such compliance and if the vendor is not compliant, it is very likely that the employer will no longer use that vendor's services.

The lesson from this settlement is that medical releases should be narrowly tailored to the needs for which the information is sought. Neither employers nor vendors should be seeking medical information beyond what is needed to determine whether an employee is fit for the job.  Also, neither employers nor vendors should be requiring employees to divulge their family medical history; that would violate GINA. 

If you would like to have your medical release forms reviewed for compliance, contact the Center for Health and Wellness Law, LLC for help.  The press release regarding the Cummins settlement can be accessed here.

About the Author

Barbara J. Zabawa

Attorney Barbara J. Zabawa started the Center for Health & Wellness Law, LLC after she recognized a need for legal services that shared a mission with providers to improve patient outcomes and population health, encourage wellness, protect patient interests in choice of provider and treatment options, provide holistic care, and expand information access. Attorney Zabawa has 20+ years of experience in the health care field, first receiving her Master's in Public Health from the University of Michigan before attending law school at UW Madison, where she graduated with honors in 2001. From 2003-2005, Ms. Zabawa clerked for the Honorable Barbara B. Crabb in the United States District Court for the Western District of Wisconsin and worked on a variety of matters, including employment, patent infringement, civil rights, and contract matters. She also served as a Skadden Fellow representing health care consumers on both the national and local level by helping consumers navigate private insurance coverage issues and advocating for their interests as a Funded Consumer Advocate at the National Association of Insurance Commissioners (NAIC). Attorney Zabawa has worked for a large health insurance company providing advice on the Affordable Care Act as well as HIPAA Privacy and Security compliance. In addition, she was in private practice at a large regional law firm for seven years, where she was a shareholder, led her firm's health care team and served as its HIPAA Privacy Officer. While in private practice, she handled a variety of health law matters, such as compliance with fraud and abuse laws, professional scope of practice matters, state licensing issues, HIPAA privacy and security compliance, Medicare and Medicaid reimbursement and conditions of participation compliance, Accountable Care Organization and other joint venture agreements, employment agreements, as well as business litigation. Attorney Zabawa is the author of the forthcoming book "Rule the Rules of Workplace Wellness Programs." She is a frequent speaker and writer both nationally and regionally on workplace wellness program compliance, the Affordable Care Act, fraud and abuse issues and HIPAA compliance. She has published several law review articles in the practice of health law and has been interviewed by TV, radio and print media regarding wellness, health reform, and HIPAA. She is a Board Member for Rogers Memorial Hospital Foundation, Board President for the Wisconsin Alliance for Women's Health, Board Member for Health Promotion Advocates, and currently serves on the Oversight Advisory Council for the Wisconsin Partnership Program and the State Bar Health Law Section Board. Education JD - University of Wisconsin Law School, cum laudeMPH - University of Michigan School of Public HealthBA - Lawrence University Admitted to Practice: • New York• Wisconsin• Federal District Court of the Western District of Wisconsin• Federal District Court of the Eastern District of Wisconsin• Court of Appeals for the Seventh Circuit• United States Supreme Court

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