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New Duties for Occupational Medicine Physicians

Shifting the burden of compliance with the ADA medical examination restrictions to the medical department or the examining physicians creates new risks that must be addressed by corporate counsel. The occupational medicine physician will now have the burden of determining employee fitness, with the attendant risk of error. The greatest risk is that the physician improperly withholds information that results in the employee's being injured. Conversely, if the employee's confidential medical information is available to unauthorized persons, there will be a presumption that any disciplinary action against the employee was due to his or her disability.

The best way to deal with this dilemma is to obtain the patient's authorization to release information to persons outside the medical department. This should not be a blanket authorization to release all medical information. The employee should be given a copy of the report the physician proposes to send to supervisors and first aid personnel authorized to receive such information. If the examinee refuses to authorize the release of the information, the physician should give the examinee a written description of the potential risks to the patient's health by withholding the information. If an incomplete report will improperly mislead the examinee, the physician may be ethically bound to refuse to provide any report on the examinee.

The ADA is not intended to affect group and individual health insurance plans, even if the restrictions of these plans on matters such as sick leave and coverage of preexisting conditions have an adverse impact on disabled persons. While not clearly defined in the proposed rules, an employer may offer "voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site." It is assumed that these include various wellness programs, as well as group medical insurance plans.

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