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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

Barbara is lead author of the book Rule the Rules on Workplace Wellness Programs, published by the American Bar Association. She is a frequent writer and speaker on health and wellness law topics, having presented for national organizations such as WELCOA, National Wellness Institute, HPLive, Healthstat University and HERO. Barbara J. Zabawa is a Clinical Assistant Professor for the University of Wisconsin Milwaukee College of Health Sciences, Department of Health Services Administration where she teaches graduate and undergraduate courses in health law and compliance, US health care delivery and health professions career development. Barbara also owns the Center for Health and Wellness Law, LLC a law firm dedicated to improving legal access and compliance for the health and wellness industries.  Before graduating with honors from the University of Wisconsin Law School, she obtained an MPH degree from the University of Michigan. Immediately prior to starting her own firm, she was Associate General Counsel and HIPAA Privacy Officer for a large health insurer where she advised on Affordable Care Act matters. She was also a shareholder and Health Law Team Leader at a large Wisconsin law firm. Barbara serves health and wellness professionals and organizations across the country as an advocate, a transactional lawyer and a compliance resource. Her commitment to improving health and wellness also shows through her community service. Barbara founded the Wellness Compliance Institute, a nonprofit organization that seeks to improve wellness program and activity compliance. She also is a Board Member for the Rogers Memorial Hospital Foundation, a health care organization that specializes in treating mental illness and she chairs the State Bar of Wisconsin Health Law Section. Barbara is licensed to practice law in both Wisconsin and New York.

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