From Washington
Question: My [fire] department has a policy that states after an employee has been off the job due to injury for more than two shifts (48 hours), the employee must fill out a job analysis form to be filled out by a doctor before he can return to duty. The Department also wants the employee to sign a waiver that releases all medical records of the employee dating back to hire, which in some cases could be 20 years. I feel that the Department only has the right to medical records which pertain to the current injury. I have been instructing my members not to sign this. Am I right in my assessment or is there a law giving the Department a right to all medical records of an employee?
Answer: You are absolutely right about the Department’s medical information policy. It strikes me that the policy has serious ramifications under the Americans With Disabilities Act, which restricts an employer’s right to obtain medical information only to situations where the need is “job-related and consistent with business necessity.” A routine requirement that all employees using a certain amount of sick leave disclose medical information would almost certainly not be “consistent with business necessity.” There may well be similar implications under Washington’s state law concerning disabilities, as well as under new federal regulations interpreting the Health Insurance Portability Act.
From Iowa
Question: We have a new physical required for employees coming back to work following a workers’ compensation claim. It is a fitness-to-work physical, and employees are required to sign a waiver that the giver of the physical along with the school district is relieved of recourse from any injury occurred while performing the physical. Is this legal, and do we have to sign the waiver?
Answer: Unfortunately, we’re unable to answer your question. In many states, the sort of requirement you describe would be an illegal condition of employment. In other states, a forced waiver of liability of the sort you describe would be considered ineffective, and would not relieve the third party of liability. However, in yet other states, no difficulty with such a waiver seems to exist. For these reasons, we’d recommend you consult with local counsel.
To submit questions on public safety labor and employment issues, visit our web site at www.LRIS.com. Please be aware that the answers given here by Attorney Will Aitchison are for information purposes only and should not be construed as legal advice.