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.