Think carefully before letting your boss or employer have direct contact with (or get records directly from) your doctor’s office. Your employer may cause problems between you and your doctor. Or your doctor might wind up releasing more information than you intended. You should always act as the go-between. Get legal advice if your employer pressures you to permit any such direct contact with health-care providers.
Beware of “Home-Made,” Employer-Created Versions of Official Federal Forms
Some employers create their own versions of official federal medical forms. You might not notice it if you’re not careful. At least one Florida state agency has done so, and includes this home-cooked version in its Family & Medical Leave Act (FMLA) packet. The form requires employees to approve direct agency contact with their physician. Here’s the actual excerpt, with the name of the agency redacted. You can see the full form here:
There’s nothing on this form to tell employees they can refuse this. This invasive language is very troubling. First, it is inherently misleading because it leads employees to believe such approval is mandatory, or even the law. It isn’t. You can say no. Second, signing this form without striking through the approval results in waiver of the doctor-patient privilege. That privilege forbids communications with health-care providers without your consent. So does HIPAA. Florida law provides broad privacy protection for your medical records and conversations with your doctor. These privacy rights apply to medical doctors, mental-health counselors, even religious counselors whose advise you seek for therapy. The Florida Constitution also has a strong right to privacy (in Article I, Section 23) that has been cited in cases involving the wrongful disclosure of health information.
Scratch Through the Word “Hereby,” and Insert the Words “DO NOT”
The bottom line is this: You are not required to consent to direct contact by your employer with your doctor about FMLA leave. And once you submit a complete and sufficient certification signed by a health care provider, your employer cannot request additional information from the health care provider. So if you are presented with a form like this, change the wording by hand from “I hereby authorize….” to “I hereby DO NOT authorize….” Write it in above the word “hereby” after you’ve scratched that word out.
You should always act as the go-between. If your employer legitimately needs more information, it can tell you so. Employers have the right to delay or deny FMLA leave if you don’t provide enough information, but that is rarely the case. Indeed, courts have held that repeated, frivolous demands for “more and more and more” information, even though it already has enough, is a type of interference and retaliation. The only contact your employer is ever permitted under the FMLA is for “authentication” of the forms you turned in. In other words, your employer can send your doctor a copy of the certification you provided and ask the doctor to verify that the information on the certification form was completed and/or authorized as it was turned in. But no additional medical information may be requested as part of this limited “authentication” step. This is only to make sure the forms have not been altered.
As always, I encourage employees to read health-care forms from their employer carefully. If the form was created by your employer and not the government, watch out. And remember every situation is different. This advice is general in nature. Consult an employee-rights lawyer for more information.
Thank you.
Jim
Categories: Disability Discrimination, Family & Medical Leave Act Of 1993, HIPAA & Medical Information, Job Injuries, Privacy Violations
Jim Garrity, Esq. - Employee Rights Lawyer 
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