Both the Family and Medical Leave Act (FMLA) and Health Insurance Portability and Accountability Act (HIPAA) of 1996 are complex regulations that include much paper work, deadlines and rulings. It is important that those who are responsible for these regulations in a business are thoroughly trained. Information as well as updates are available on line through the Department of Labor and the Department of Health and Human Services for additional information. According to the U. S.
Department of Labor FMLA (website Q&A), any employer with 50 or more employees must provide any eligible employees up to twelve (12) workweeks of unpaid leave during any twelve- (12)-month period for one or more of the following reasons: 1) for the birth and care of the newborn child of the employee; 2) for placement with the employee of a son or daughter for adoption or foster care; 3) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or 4) to take medical leave when the employee is unable to work because of a serious health condition.
FMLA does not require paid time off. The law permits a worker to choose, or the employer to require the worker, to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the twelve (12)-week FMLA leave granting if the employee is adequately told of the designation when the leave begins.
Further, FMLA and workers’ compensation leave can run together, as long as the reason for the absence is due to a qualifying serious illness or injury and the employer adequately tells the worker in writing that the leave will be counted as FMLA leave. Employers should notify employees, as well, that pregnancy disability or maternity leave for child birth can be considered qualified as FMLA leave for a serious health condition and counted in the twelve (12) weeks of leave as long as the employee is notified in writing; the employer cannot count leave as FMLA retroactively.
The FMLA leave is granted under the FMLA and runs concurrently with the Workers’ Compensation and other leaves as appropriate and sanctioned by law. Leave beyond the 12 work weeks granted under FMLA other leaves may be available in accordance with employer’s leave policies, union contracts and other state and federal laws. The HIPAA Privacy Rule is the first comprehensive federal protection for the privacy of personal health information.
According to the Department of Health and Human Services (HHS) (website), the Privacy Rule standards address the use and disclosure of individuals’ health information, called “protected health information” by organizations subject to the Privacy Rule, or “covered entities,” in addition to standards for individuals’ privacy rights to comprehend and determine the use of their health information.
The Office for Civil Rights, within HHS, has responsibility for implementing and enforcing the Privacy Rule. Every employer, regardless of size, that offers a group health plan to its employees is impacted by HIPAA and must determine its compliance obligations, even though an insurance company administers those benefits. The Privacy Rule defines and limits the situations when an individual’s health information may be used or disclosed by covered entities.
The health information cannot be used except 1) as the Privacy Rule permits or requires; or 2) as the individual who the subject of the information authorizes in writing. An employer must disclose protected health information in only two situations: 1) to individuals specifically when they request access to, or an accounting of, disclosures of health information; and 2) to HHS when has a compliance investigation action.
An employer is permitted, but not required, to use and disclose health information without an individual’s authorization for the 1) Individual; 2) Treatment, Payment, and Health Care Operations; 3) Opportunity to Agree or Object; 4) Incident to another permitted use; 5) Public Interest and Benefit Activities; and 6) Limited Data Set for research, public health or health care operations. The employer must obtain the individual’s written authorization for any use or disclosure of the health information not for treatment, payment or health care operations (HHS website).
The employer must also develop and implement written privacy policies and procedures that are consistent with the Privacy Rule, must designate a privacy official responsible for developing and implementing its privacy policies and procedures, and a contact person or contact office responsible for receiving complaints and providing individuals with information on the employer’s privacy practices, train all workforce members on its privacy policies and procedures and have a procedure for complaints. No employee can be retaliated against for asking for rights under the regulations.
The employer can be fined by the HHS if not complying with the law (HHS website). Employment records that are generated outside the health plan for employment-related purposes, do not fall under HIPAA’s regulation. This includes records generated and maintained for the purposes of FMLA compliance. However, employers are under HIPAA’s view because of their role as employee health plan sponsors. Also, an employee’s health care provider will probably be a covered entity, which means the provider must comply with HIPAA before disclosing any information (Fisher and Phillips website).
One way to avoid this problem is for the employer to ask the employee to obtain information from the doctor and then provide it to the employer, or have the employee complete an authorization form that directs his/her physician to release information directly to the employer. This should be incorporated into an FMLA certification process. If the employer receives the employee’s medical information through either of these methods, he/she will not incur any HIPAA obligations. Bibliography : Department of Health and Human Services.
HIPAA. Website retrieved March 16, 2006. http://www. healthfinder. gov/docs/doc00072. htm Department of Labor (nd). ELaws. FMLA Website retrieved on March 16, 2006. http://www. dol. gov/elaws/esa/fmla/faq. asp Department of Labor (nd). ELaws. Benefits. Website retrieved on March 16, 2006. http://www. dol. gov/elaws/pay. html Fisher & Phillips Attorneys at Law. HIPAA Privacy. Website retrieved March 16, 2006. http://www. laborlawyers. com/FSL5CS/interview%20with%20the%20expert/interview%20with%20the%20expert22. asp