Attorney Steven Mitchell Sack, “The Employee’s Lawyer,” was recently interviewed by Newsday in which an operating engineer at a not-for-profit hospital asked if the employer was being intrusive about his ailments. Mr. Sack says the hospital has certain legal rights to be informed of a worker’s injury or illness, but must be careful not to use an employee’s health information when making human resources decisions.
The employee suffered a broken foot as the result of falling off a ladder. After missing six months of work, the employee returned with a doctor’s note that cleared the employee to return to work. However, the human resources specialist — who is also a physician’s assistant (PA) — wanted to see if the employee had regained enough strength in the foot that was broken by performing exercises by walking around the room.
“While the request to examine your foot sounds intrusive and nosy, the hospital is probably within its legal bounds having the human resources PA person briefly examine you,” Mr. Sack said, adding that the hospital should take care not to use the employee’s foot injury and subsequent absence from work when evaluating the worker’s job performance. “The potential conflict exists and should be avoided by the hospital,” he said.
Mr. Sack says many employers request that its workers undergo an examination with a doctor provided by the company if that worker has filed for worker’s compensation and disability claims. “They are right to do so, especially if there is an express provision stating this,” he said. “Since the brief exam was probably lawful, you did the right thing by consenting to it, especially if it confirmed your doctor was correct in clearing you to return to work. If you refused to consent, you might get written up for insubordination and fired, especially if you are not covered by a union contract.”