Copyright 1999 Federal Document Clearing House, Inc.
Federal Document Clearing House Congressional Testimony
July 20, 1999
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 2625 words
HEADLINE:
TESTIMONY July 20, 1999 LPA, INC HOUSE WAYS AND MEANS HEALTH
PATIENT CONFIDENTIALITY
BODY:
STATEMENT OF LPA,
INC. CONCERNING MEDICAL PRIVACY LEGISLATION BEFORE THE COMMITTEE ON WAYS AND
MEANS SUBCOMMITTEE ON HEALTH UNITED STATES HOUSE OF REPRESENTATIVES JULY 20,
1999 MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE: Thank you for allowing us to
present our views to your Subcommittee regarding medical privacy legislation.
LPA, Inc., formerly the Labor Policy Association, is a public policy advocacy
organization representing senior human resource executives of more than 250 of
the largest corporations doing business in the United States. LPA's purpose is
to ensure that U.S. employment policy supports the competitive goals of its
member companies and their employees. LPA member companies employ more than 12
million employees, or 12 percent of the private sector workforce. While there
are numerous issues in the medical privacy area where we share the concerns of
others within the business community, LPA's primary concern deals with the
ability of employers to make critical human resource decisions that serve the
interests of employees and the public at large. The principle at stake is
whether employers, primarily through fitness-for-duty testing and drug testing,
may ensure that employees are not only capable of performing the functions of
their position but also that, in doing so, they do not pose a threat to
themselves, their co- employees, or the public at large. This concern goes well
beyond the bottom-line interests of the employer. Moreover, we urge the
Subcommittee not to overlook the substantial protections that already exist
under current law to ensure that employers do not abuse this responsibility.
First and foremost, almost ten years ago, the Congress enacted sweeping
legislation-the Americans With Disabilities Act (ADA@-that establishes
substantial protections for employees regarding employment decisions based on
their physical and mental capabilities. As part of those protections, the law
imposes carefully crafted restrictions on what employers can ask and how they
can use medical information about applicants and employees. Mr. Chairman, we
appreciate the work your staff has done to learn about these issues as it
drafted your version of medical privacy legislation. We look forward to working
with them further to ensure that final legislation allows employers to meet
their obligations to employees and others under current labor and employment
laws. The Executive Branch has not been as responsive. In her September 1996
testimony before Congress, Secretary of Health and Human Services Donna Shalala
spoke at great length about the need for specific and far-reaching protections
for the personal health information of patients. However, the Secretary's
testimony gave far less attention to the very legitimate need of employers for
health information for the purposes of ensuring a safe and efficient workplace
and complying with existing law. Under legislation previously introduced in the
House-H.R. 1057 and S. 573, the "Medical Information Privacy and Security Act,"
H.R. 1941, the "Health Information Privacy Act," H.R. 2404, the
"Personal Medical Information Protection Act of 1999," and H.R. 2470, the
"Medical Information Protection and Research Enhancement Act of 1999"-and in the
Senate-S. 578, the "Health Care Personal Information and Nondisclosure Act of
1999" and S. 881, the "Medical Information Protection Act of 1999"--the impact
on these restrictions would be, at best, unclear. At worst, the careful balance
in the ADA between the individual employee's interests and those of his or her
co- employees, the employer and the public would be completely undermined. A
similar analysis applies to drug testing which, in many instances, employers are
required or encouraged to perform by law. Since these employer activities have
never been the focus of the medical privacy debate, we do not believe the
supporters of medical privacy legislation would intend to disrupt them. Instead,
it is our sense that, in the rush to enact legislation by the August 1999
deadline, the Congress is still gathering information about all the various
endeavors that could be affected, and this is an impact that has not been fully
considered. Indeed, after raising these concerns with the Senate Committee on
Health, Education, Labor and Pensions, the medical privacy legislation currently
under consideration by the Committee now protects these employer activities.
Therefore, it is our purpose today to provide you with the necessary information
to assist you in crafting legislation that does not pose a threat to the ability
of employers to protect their own employees as well as the public at large. Drug
and Fitness for Duty Tests Many jobs require certain levels of physical and/or
mental competencies. Fitness for duty examinations allow employers to determine
whether an individual can perform the essential functions of the job and, if
they are not able to because of a disability, whether a reasonable accommodation
can be made to enable them to perform those functions. The Equal Employment
Opportunity Commission, in its January 1992 "Technical Assistance Manual on the
Employment Provisions (Title 1) of the Americans With Disabilities Act,"
provides several examples of fitness tests, all of which are consistent with the
ADA's protections: ensuring that "prospective construction crane operators do
not have disabilities such as uncontrolled seizures that would pose a
significant risk to other workers;" testing of workers in certain health care
jobs "to ensure they do not have a current contagious disease or infection that
would pose a significant risk of transmission to others;" and ensuring that an
individual considered for a position operating power saws or other dangerous
equipment is not someone "disabled by narcolepsy who frequently and unexpectedly
loses consciousness." In addition to fitness for duty tests, many employers
implement drug testing of prospective and current employees. Workplace drug
testing, as part of a drug-free workplace policy, has proven extremely effective
in reducing work-related accidents. In the 1980s, many companies implemented
these programs and began experiencing immediate positive results in their health
and safety records. Many of these were described in a 1989 study by the
Employment Policy Foundation entitled "Winning the War on Drugs: The Role of
Workplace Testing": Southern Pacific Transportation Co. first implemented its
drug testing program in 1984. According to the company, personal injuries per
200,000 employee hours worked dropped from 15.6 in 1983 to 6.5 in 1988. Train
accidents attributable to human failure dropped from 91 1 incidents in 1983 to
96 in 1988. Pacific Gas and Electric Co. enjoyed a 25% reduction in accidents
and a 40% decrease in serious injuries after it implemented its pre- employment
screening program, designed to alert the company to drug- using job applicants.
Illinois Bell reported saving $459,000 in reduced absences, accidents and
medical disability resulting from a rehabilitation program in which drug-using
employees were enrolled. Because of the success of programs like these, testing
in some industries is now even required by law, such as the mandatory drug
testing programs for commercial drivers required by the Omnibus Transportation
Employee Testing Act of 199 1. Even where drug testing is not required, it is
often encouraged. Thus, the Drug-Free Workplace Act of 1988 requires all federal
contractors with contracts of at least $25,000 to certify that they are
providing a drug-free workplace, at the risk of contract debarment if they fail
to do so. Many contractors are able to provide this certification as a result of
their drug testing programs. Application of Pending Legislation None of the
bills introduced so far in the 106th Congress contain specific provisions
dealing with fitness for duty tests or drug testing. However, it seems clear
that the broad definitions of "protected health information" (PHI) under the
various bills would encompass the data obtained from those tests, since PHI
includes all information that relates to the "past, present or future physical
or mental health or condition of an individual" that is created or received by,"
among others, an employer. The bills require that employers obtain a separate
authorization from an employee before receiving such protected health
information. If the employee refuses to provide the authorization, the employer
is forbidden from viewing the results of those tests. This is specifically
stated in Section 203 of H.R. 1057 and S. 573 which provides that an employer,
health plan, health or life insurers, or providers "may not disclose protected
health information to any employees or agents who are responsible for making
employment, work assignment, or other personnel decisions with respect to the
subject of the information without a separate authorization permitting such
disclosure." Section 103 of H.R. 1941 provides that employers may not require an
authorization of disclosure of protected health information as a condition of
providing or paying for health care. The requirement for an authorization in
these instances is, of itself, not problematic, as long as the employer may take
appropriate action where the employee or applicant fails to provide the
authorization. Thus, if a job applicant takes a mandatory fitness for duty test,
but refuses to authorize disclosure of the results to the employer, the employer
should be able to refuse to hire the individual on that basis, or else the test
is no longer mandatory. Two of the bills-H.R. 1057 and S. 573-generally require
employers to provide written notice to their employees of, among other things:
"The right of an individual not to have employment or the receipt of services
conditioned upon the execution by the individual of an authorization for
disclosure." This is the only place in the bills where this right is mentioned,
but if the bills do indeed create such a right and become law, then an employer
would violate the law by refusing to hire an individual who failed to authorize
the release of the results of a drug or fitness for duty test. We believe that
Congress has no inclination to prevent employer practices designed to protect
the health and safety interests of their employees and the public, particularly
in view of the history of strong congressional support for drug testing
programs. Thus, we strongly urge this Subcommittee to clarify any medical
privacy legislation that it considers to ensure that mandatory fitness and drug
testing can continue to exist. Relationship of Legislation to Existing Laws A
broader unintended problem is the failure to contemplate the interaction with
other laws which may not comprehensively regulate disclosure of individual
medical information, but where that information is implicated in the compliance
with those laws. In particular, the ability of employers to comply with both the
Americans with Disabilities Act (ADA) and the Family and Medical Leave Act
(FMLA) could be substantially impaired. Americans with Disabilities Act. Under
the Americans with Disabilities Act, employers are already substantially
regulated as to when they can require medical exams of, or request medical
information from individuals; what they can examine or ask them for; and what
employment decisions are permissible once medical information concerning the
individual is acquired. An employer is generally prohibited from discriminating
against a "qualified individual with a disability," which means a disabled
individual who can perform the essential functions of the job" with or without a
"reasonable accommodation." The ADA rightfully recognizes that the employer must
have access to a certain amount of medical information about employees and
prospective employees. Under Section 102 of the ADA, employers have the right to
require a medical examination after an offer of employment has been made and
prior to the commencement of employment. If, during the medical examination, the
doctor discovers a condition that may affect the person's ability to do the job,
the employer still must go through the "reasonable accommodation process" to
determine whether the individual could do the essential functions of the job
with reasonable accommodation. Once the individual has been hired, the employer
may not require medical examinations unless they are "job-related and consistent
with business necessity." Meanwhile, the ADA limits the amount of medical
information that can be obtained during employment to that information which is
job-related and consistent with business necessity. Strict confidentiality
requirements apply to the information. During the hiring process, the employer
may share medical information only with decision makers with a "need to know"
the information. Even an employee's supervisor and manager are not entitled to
any medical information beyond what limitations the employee has to do the
particular job. Thus, the ADA already protects against any improper use of
critical medical data by the employer. Yet, the data obtained consistent with
ADA requirements would clearly constitute protected health information under
legislation introduced so far. Thus, even though the employer would have a right
to access the data under the ADA, a new authorization requirement would be
superimposed and employers could be forbidden from viewing the results of
medical exams taken to detect or confirm the existence of a disability that
could affect the ability of an employee to do his or her job competently and
safely. Wfile H.R. 1941 provides explicitly that it shall not preempt the
Americans with Disabilities Act, the disclosure requirements in the bill make
compliance with the ADA potentially problematic. Family and Medical Leave Act.
Under the Family and Medical Leave Act (FMLA), employees are guaranteed a right
to up to twelve weeks of leave annually for a serious medical condition. Under
Section 103 of the FMLA, employees who wish to use FMLA medical leave can be
required by their employer to provide a certification issued by a health care
provider that discloses, in part: the date on which the employee's "serious
medical condition" began; the probable duration of the condition; the
"appropriate medical facts within the knowledge of the health care provider"
regarding the condition; and a statement that the employee is unable to "perform
the functions of the position." Clearly, most or all of the information
contained in the medical certification would meet the definition of protected
health information under all the proposed bills, and would therefore be covered
by the requirements of those bills. Thus, for the employer to receive the
certification, the employee would have to provide the requisite authorization.
Since the employer may, under the FMLA, deny leave for an alleged serious
medical condition where no certification is provided, could an employee argue
that his or her consent was coerced in this situation and thus not valid? This
issue must be clarified in the legislation. Conclusion In conclusion, we believe
it is extremely important that any legislation crafted by your Subcommittee in
this area recognize the critical role played by medical information in enabling
employers to provide necessary protections to their employees as well as the
general public. These protections are provided within a framework of existing
laws that were carefully crafted to achieve a balance between the competing
interests of the individual employee, his or her co-employees, the employer and
the public. A dismantling of this framework, whether intended or not, would be
disastrous.
LOAD-DATE: July 21, 1999
