ADA, FMLA, HIPAA, and OSHA
The Americans with Disabilities Act (ADA) is designed to “remove work place barriers to an individual with a handicap.” It prohibits employers “from discriminating against qualified individuals because of disability in all aspects of employment.” According to the ADA, an individual is “disabled” if he or she meets at least one of the following criteria:
- Physical or mental impairment that substantially limits one or more of his/her major life activities;
- Record of such an impairment;
- Regarded as having such an impairment.
The ADA makes it illegal for employers in all businesses with 15 or more employees to discriminate against the handicapped. Indiana has a companion Hoosiers with Disabilities Act (enacted in 1992) applicable to employers with 6 or more employees. In order to avoid discrimination, a business may have to make changes in the duties involved in a job, the layout of workstations, or equipment modification. Employers may also have to alter their application process, hiring procedures, wages, and benefits calculations. Medical examinations are highly regulated so as not to discriminate against the handicapped.
The ADA is generally considered far more global in its protection of the handicapped than state Second Injury Funds (SIFs). About 17 states have eliminated their SIFs.
The Family and Medical Leave Act (FMLA) became effective on August 5, 1993, for most employers. It was enacted with recognition for the lack of employment policies to accommodate working parents in their choice between job security and parenting and the inadequate job security that existed for employees with serious health problems. The purpose of the law was designed to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.
Under the FMLA, employers with more than 50 workers are required to provide up to 12 weeks of unpaid, job-protected leave to “eligible” employees for certain family and medical reasons. Employees are “eligible” if they have worked for a covered employer for at least one year and for at least 1,250 hours during the previous twelve months. The law specifies acceptable reasons for taking leave, provides for intermittent or reduced leave, and calls for job and benefits protection and continued medical insurance coverage. Employers must reinstate the worker at the end of the leave, and may not discipline or fire employees taking FMLA leave.
The law is enforced primarily by the United States Department of Labor’s Employment Standards Administration, Wage and Hour Division, for all private, state and local government employees, and some federal employees. Special rules apply to employees of local educational agencies and separate provisions are applicable to civil service employees.
Employee CoverageFMLA applies to all:
- public agencies, including state,, local and federal employers, and local education agencies (schools); and
- Private sector employers who employ 50 or more employees for at least 20 work-weeks in the current or preceding calendar year, including joint employers and successors of covered employers.
Employee eligibility To be eligible for FMLA benefits, an employee must work for a covered employer and:
- have worked for that employer for at least 12 months;
- have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and
- work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed at the location or within 75 miles of the location.
Leave EntitlementA covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave in a 12 month period for one or more of the following reasons:
- for the birth of a son or daughter, and to care for the newborn child;
- for the placement with the employee of a child for adoption or foster care, and to care for the newly placed child;
- to care for an immediate family member (spouse, child, or parent – but not a parent “in- law) with a serious health condition. When the employee is unable to work because of a serious health condition.
For purposes of the law, a “serious health condition” means an illness, injury, impairment or physical or mental condition that involves:
- any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility;
- a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider;
- any period of incapacity due to pregnancy, or for prenatal care;
- any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.);
- a period of incapacity that is permanent or long – term due to a condition for which treatment may not be effective (e.g., Alzheimers, stroke, terminal diseases, etc.); or
- any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).
Job RestorationUpon return from FMLA leave, an employee must be restored to the employee’s position of employment when the leave commenced, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. In addition, an employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a “no fault’ attendance policy.
Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid “key” employees after using FMLA leave during which health coverage was maintained.
Unlawful ActsFMLA makes it unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by this law. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to FMLA.
Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; nor can FMLA leave be counted under “no fault’ attendance policies.
FMLA Application to Workers CompensationNeither the FMLA law nor promulgated regulations contain substantive information relative to the interaction between FMLA and workers compensation. In presenting a series of Questions and Answers regarding FMLA, the Department of Labor notes that “FMLA leave and workers compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave.”
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that required the creation of national standards to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge. The US Department of Health and Human Services (HHS) issued the HIPAA Privacy Rule to implement the requirements of HIPAA. The HIPAA Security Rule protects a subset of information covered by the Privacy Rule.
The Privacy Rule standards address the use and disclosure of individuals’ health information (known as “protected health information”) by entities subject to the Privacy Rule. These individuals and organizations are called “covered entities.” The Privacy Rule also contains standards for individuals’ rights to understand and control how their health information is used. A major goal of the Privacy Rule is to ensure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and promote high quality health care and to protect the public’s health and well-being. The Privacy Rule strikes a balance that permits important uses of information while protecting the privacy of people who seek care and healing.
Workers Compensation – No Impact
As of February 2013, the U.S. Department of Health and Human Services website explains: 45 CFR 164.512(l) Background“The HIPAA Privacy Rule does not apply to entities that are either workers’ compensation insurers, workers’ compensation administrative agencies, or employers, except to the extent they may otherwise be covered entities. However, these entities need access to the health information of individuals who are injured on the job or who have a work-related illness to process or adjudicate claims, or to coordinate care under workers’ compensation systems. Generally, this health information is obtained from health care providers who treat these individuals and who may be covered by the Privacy Rule. The Privacy Rule recognizes the legitimate need of insurers and other entities involved in the workers’ compensation systems to have access to individuals’ health information as authorized by State or other law. Due to the significant variability among such laws, the Privacy Rule permits disclosures of health information for workers’ compensation purposes in a number of different ways.” Also, since workers compensation insurance is not a “health plan,” it is excluded from the HIPAA privacy regulation. HHS clarifies in the preamble that the minimum necessary standard is not intended to impede disclosures necessary for workers’ compensation programs. HHS will actively monitor to ensure that worker’s compensation programs are not unduly affected by the Rule. Below are excerpts from the OCR website that document the exclusion.
Occupation Safety and Health Administration (OSHA)
- Record Keeping: Every employer covered by OSHA who has more than 10 employees must maintain OSHA specified records of job-related injuries and illnesses. This does not apply to certain low hazard industries, including retail, finance, insurance, real estate, and some service industries. There are two such records, the OSHA Form 200 and the OSHA Form 101.
- Reporting: Each employer must report to the nearest OSHA office within 8 hours of any accident that results in one or more fatalities or hospitalization of three or more employees. This applies to all employers regardless of number of employees or industry group. Such accidents are investigated by OSHA to determine causation and whether violations of standards contributed to the event.
Source: Summary of OSHA Regulations from website of Environment, Health and Safety Online