Lack of dialogue creates potential penalties, expert says

Employers may unknowingly violate privacy laws by integrating their absence management programs, says Richard Pimentel.

The partner at Milt Wright & Associates and veteran disability management/return-to-work expert warns that integrating occupational and non-occ RTW programs without proper planning, for example, can be troublesome.

The problem arises when an employer seeks medical information that would be available for an injured worker but not for one injured off the job.

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"You only can do that with a modified HIPAA release," Pimentel said. "It means the RTW non-occ integrated program has to be a voluntary program where the worker says 'I want to be considered for this.' Employers still need RTW programs. That's why working with HR is important to neutralize these liabilities."

FMLA violations can be the unintended consequence of policies that require all injured workers to take these benefits simultaneously with workers' comp. "As soon as HR forces someone to take FMLA and RM offers them a light-duty job that is refused, RM can reduce their time loss payments but can't do anything to them from an employment standpoint because they are on FMLA," Pimentel said. "Otherwise, they could take personnel action. ... HR and RM need to explore the whole scenario to assess best options."

December 3, 2012

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