If one of my employees calls out sick, are they protected by HIPAA when I ask them for a more specific reason?

Question

The other day, one of my employees called out sick. When they came back in, I asked for a more specific reason and/or a doctor's note. They refused saying that because of HIPAA they didn't have to answer my questions; Their privacy is protected.

Is this right? Have their been any firm legal rulings to this effect?

Answer 1

Note to Rosco: FMLA requirements vary by state. The 1250 hours are specific to your state but may not apply here. The short answer to this question is you CANNOT ask about their health condition...any health condition. You also want to tread very lightly with any health condition/information that is volunteered.

You can require a physician note that states simply the employee was under the physician's care and unable to work - but be sure that this policy applies to all employees and enforced across the board, and clearly stated as part of an attendance policy. You do not want to single anyone out.

Anything beyond that should be handled through employee benefits and human resources and must STRICTLY adhere to all HIPAA laws - which do not vary by state. My recommendation is that you immediately speak with your HR person for clarification and guidance.

Answer 2

Having to deal with employee's also, I can tell you that it is their right to not say anything to you or have to. Now, you can tell your HR department and only they can ask for more information. Of course you will not find out what is said but it will only help if you have a employee you are thinking is "skipping out" on work on sick days.

HIPAA was put in effect mainly to protect the employee's that have issues that could effect their evaluations, as a example, someone with AIDS might not get a raise from a supervisor that has issues with AIDS.

Answer 3

I don't know what the answer is for sure. You may want to contact an employment attorney and obtain an Opinion Letter on the issue. I know that where I work, I don't really question it, but if it is more than 2 days a Doctor's note is required. But even so, there is potential for abuse. You can attempt to curb chronic absenteeism by enacting an "occurrence" policy with written warnings at say 5 or 7 "occurrences" with termination on the next following occurrence (all within a rolling 12 month period). And if you get an Opinion Letter, you might as well ask to have an opinon rendered on a potential Occurrence Policy.

Answer 4

IMHO, your employee is BSing you. HIPAA applies to healthcare providers, not to the individuals.

See http://en.wikipedia.org/wiki/HIPAA#The_Privacy_Rule

You are NOT asking the doctor or the hospital (i.e. healthcare provider) for the information. You are asking the (alleged) patient.

There may be some OTHER laws that guard his/her privacy (such as the 5th Amendment), but HIPAA is NOT the right law for this instance.

That's a rather creative use of HIPAA privacy rule though. I wonder who taught him/her that.

Answer 5

Your best bet would be to call your local Labour Relations Board and ask one of the in-house counsel who are more qualified to answer these questions.

I agree with Kasey and Goose. However, a day away of being ill should be acceptable without a dr's note. But if your employee was away for a number of days, then a note should be provided.

But don't listen to me, I believe that a Labour Relations counsellor would best tell you what the laws are. You can also pick up a booklet to keep you up-to-date on the labour laws.

Good luck to you. And all the best.
~~~~~~~~~~~~~

Answer 6

my mom works insurance and company plans- so know hipaa like the back of their hand.
you can't demand an answer. you can ask for a doctor's not- but all it has to say is that they were ill and seeked medical treatment. the note will not say what was wrong.

Answer 7

You can ask for a Dr's note that simply states, "The employee was under my care and was unable to report to work due to their condition." You can't ask for specifics in regards to their "condition". You then have to either enter a "sick" day with pay or use their Vacation time as unscheduled time to cover their absence. If they have a condition that will require them to be out periodically then they need to contact their benefits coordinator and apply for FML coverage (must have been employed for a year and worked 1250 hours to qualify for FML) or file a claim under Short Term Disability. You have every right to ask for a Dr's note.....you just can't delve into their condition.

Answer 8

We give out slips all the time to our patients for their employers. If you make it policy in your place of business to show that they attended a doctors appointment, it won't count as an occasion. If they prefer not to hand one in, it will be counted as an occasion. After two occasions within a pre-determined time the employee will be subject to drug testing and or termination, depending on the owners decision. The note does not have to tell you what they were there for, just that they were there. Make it simple!

Answer 9

Would you want people knowing what your illnesses are? No! And of course their privacy is protected. As an employer, you need to look into issues like these. Otherwise, one day you're going to upset the wrong person by asking the wrong question (which as an employer, could be completely illegal or somewhere along that line), and get slapped with a lawsuit.

Personally, if I was your employee and you questioned me, I'd be in the office with HR immediately! I'd take it as a threat against my job that you are questioning me. A doctors note (if company policy) should be suficient enough. Otherwise, it should be an unexcused abscense/sick day without a doctors note!

Answer 10

They are protected by HIPAA laws. They do not have to give specifics about why they went to the doctor or their condition. If you push the issue you are opening a legal can of worms. Let it slide.