Shifting the burden of compliance with the ADA medical examination
restrictions to the medical department or the examining physicians creates
new risks for the medical providers. The physician now has 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. However, 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. If the physician is an independent contractor, there can be
substantial liability for improperly releasing medical information to an
employer. [Pettus v. Cole, 49 Cal. App. 4th 402, 57 Cal. Rptr. 2d 46 (Cal. App.
1 Dist. 1996).]
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 the 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 from withholding the information. If
an incomplete report may mislead the employer, then 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. Although 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.
