By Mike Antich
If employees are driving while fatigued, they areimpaired. Just like alcohol, fatigue affects the ability to drive by slowingreaction time, decreasing awareness, and impairing judgment. University studiesshow that if an employee is overly tired and driving, it is the same as beingdrunk behind the wheel. Among the top 10 driver errors, the American AutomobileAssociation lists “drowsiness” at No. 2, just behind distractions.
But what if a driver’s drowsinessis the result of a diagnosed sleep disorder, such as sleep apnea, and your HR Departmentknows of this medical condition? Should the HR Department notify the fleetmanager of this potential fleet safety risk? You would think they should, butthe reality is they can’t by law. The Health Insurance Portability andAccountability Act of 1996 (also known as HIPAA) makes it a criminal act todivulge medical information to a third-party without the employee’s permission.HIPAA’s Privacy Rule causes many HR managers to struggle with the use anddisclosure of protected health information that reveal potential safety risks aboutemployees’ ability to fulfill their employment responsibilities.
Let’s use another example.What if an employee is taking prescription medications, such as antidepressants?Some medications, such as anti-anxiety medications, may affect driving byinducing drowsiness or excitability or by altering reaction times. Othermedications, including painkillers, can also impair driving skills. Because ofpotential side effects, these prescription drugs carry warnings against drivingwhile taking them. The reality is that some people ignore these warnings. Accordingto one medical survey, 30 percent of prescription drugs are misused in waysthat threaten health. Although the HR Department may know that a driver istaking antidepressants, divulging this information to a third party, such as afleet manager, is a HIPAA violation
Let’s examined a thirdexample. What if a driver is an insulin-dependent diabetic , who stops taking insulinand someone overhears this employee in the lunchroom say that he quit takinginsulin? For a diabetic, not taking insulin heightens the risk of going intoinsulin shock, perhaps while driving a company car. Can a fleet managerconfirm with the HR Department whether a driver is an insulin-dependent diabetic?The answer is no. Again, it is a HIPAA Privacy Rule violation. In almost all cases, medicalprivacy rights preclude a fleet manager from gaining knowledge about the medicalconditions of employee drivers.
I am a strong proponent of privacy rights,but what if a person’s private actions may result in their death or death ofothers? HIPAA regulations make it a crime for health care workers or thoseprivy to this information, such as HR managers, to disclose “individually identifiablehealth information” to a third party without the prior consent of the personinvolved. Divulging this information is not a trivial matter. HIPAA employscriminal, rather than civil, penalties to enforce these privacy requirements.
Don’t Underestimate HIPAA’s Impact
Fleet managers shouldn’t underestimate the impact of the HIPAA’sprivacy rule on fleet operations. Nearly every fleet manager, in one way oranother, will be affected by the law’s privacy requirements. Another example ofhow HIPAA can impact fleet management is its regulations governing the use ofinformation from employer-required medical examinations and drug tests.
The HIPAA privacy rule also affects health information gathered byemployers for Workers' Comp or OSHA requirements. Fleet is one of thelargest sources of Workers’ Comp claims, which include injuries frompushing,pulling, lifting, and bending. Could some of these injuries have beencaused bya pre-existing medical condition? HIPAA requires that an employeeauthorize therelease of medical information from the physician to the employer whenitpertains to disability paperwork.
The HIPAA Privacy Rule contains an important exception for the useand disclosure of protected health information when the information is providedto comply with Workers’ Comp laws. Despite this, attorneysadvise HR managers to get written employee authorization prior to attempting toobtain information from a physician.
Additionally, fleet managers should note that requests for medicalinformation under the Americans with Disability Act (ADA) must be kept instrict confidence. There are significant limitations on what medical informationabout an employee can be used and how it can be disclosed under the ADA.
A Partnership Between Fleet & HR
Fleet managers should work with HR as a team to protect the company. Fleet managers are responsible to report to HR symptoms or knowledge of an employee's impairment. HR's responsibilities are to ensure employees are impairment-free or that legal accommodations are taken for their medical/physical situations. Good HR and fleet staffs should work together as a team.
However, the HIPAA Privacy Rule brings a whole new dimension to fleet managementas it relates to the use and disclosure of medical information about employeedrivers. One fleet manager lamented to me that “HIPAA is the worst thing thathas ever happened to fleet.”
Everyone supportsthe HIPAA prohibition against using protected health information foremployment-related purposes without employee authorization, especially when itapplies to them. But many fleet managers also believe HIPAA non-disclosure requirementsare counter-productive to fleet safety.
Let me know what you think.