Disability Management and Privacy

As a follow-up to the article in our February edition of Spotlight on Benefits titled, “Respecting and Protecting Employee Privacy when Administering Benefits”, this month’s article will focus on the delicate balance between managing a disability claim and protecting the employee’s right to privacy of their medical information.

With the rising costs of disability and absenteeism, employers are putting a new emphasis on managing disability claims in their organizations.  As a result, they are asking their insurers or third-party administrators (providers) to share information about a claim so they may be able to better manage the employee’s absence and eventual return to work.

When an employee is off on disability following a fracture or recovery from surgery, the employer usually gets the information they need from the employee themselves.  However, as the claims become more complex, many employers are challenged by the restrictions regarding the disclosure of personal medical information by their provider.

As we discussed in our February article, the Personal Information and Protection of Electronic Documents Act (PIPEDA) also protects the medical information collected and disclosed during disability claims submission and adjudication.

While employers understand the importance of privacy legislation for their employees, they feel hindered by the restrictions in the flow of information.  Employers need certain information to support the “gap” resulting from the absent employee – how long will they be off?  Will they need to come back on modified duties?

Protecting personal information is important.  An employee may not want their employer to know about a sensitive medical condition.  They may worry that disclosure could hinder their future career opportunities.  Employers do not have the right to know about their employee’s medical condition and most employers don’t want to know .

Although employers can access aggregated historical claims information, accessing information on individual, active claims is more difficult.  Also, since the legislation is open to interpretation, what is and isn’t disclosed as well as the minimum thresholds for access to information can vary by provider.  Generally, the diagnosis is protected, the restrictions and limitations, as well as the prognosis, can be shared.

Regular communication between the employee and employer as well as the employer and the provider is important.  Employers who regularly check-in with a disabled employee without asking for specifics of their condition or treatment are better able to manage the human capital requirements while helping the employee stay connected to the workplace during their absence.

A provider can respect privacy legislation but at the same time, manage the employer’s expectations regarding timely communication about the duration of the claim and return to work plans. Working together with the employer’s disability management provider can result in a better understanding of what each other’s position is, and requirements are.

If an employee refuses contact with their employer during their absence, employers can feel obstructed.  This can be problematic with more complex claims, in particular, when the employer is not aware of the complications or obstacles to recovery and the provider is unable to provide additional information.

Although employees have a right to keep their medical information confidential and are not obligated to share personal details of their claim with their employer, they do have an obligation to provide sufficient medical information to substantiate their disability claim or workplace accommodation.

That said, unless the employer has an HR policy regarding disabilities that states otherwise, as long as an employee continues to engage with the provider, delivers the necessary medical support to justify the claim and participates in required treatment programs, they are not required to keep their employer informed.

Privacy legislation is here to stay and it is unlikely there will ever be a standardized approach to disclosure of information.  The best way employers can manage disability claims is to foster a collaborative partnership with their provider through regular communication.  This allows employers to ensure privacy requirements are being respected and they are getting what they need to manage their workforce.