By Mike Antich
If employees are driving while fatigued, they are
impaired. Just like alcohol, fatigue affects the ability to drive by slowing
reaction time, decreasing awareness, and impairing judgment. University studies
show that if an employee is overly tired and driving, it is the same as being
drunk behind the wheel. Among the top 10 driver errors, the American Automobile
Association lists “drowsiness” at No. 2, just behind distractions.
But what if a driver’s drowsiness
is the result of a diagnosed sleep disorder, such as sleep apnea, and your HR Department
knows of this medical condition? Should the HR Department notify the fleet
manager of this potential fleet safety risk? You would think they should, but
the reality is they can’t by law. The Health Insurance Portability and
Accountability Act of 1996 (also known as HIPAA) makes it a criminal act to
divulge medical information to a third-party without the employee’s permission.
HIPAA’s Privacy Rule causes many HR managers to struggle with the use and
disclosure of protected health information that reveal potential safety risks about
employees’ 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 by
inducing drowsiness or excitability or by altering reaction times. Other
medications, including painkillers, can also impair driving skills. Because of
potential side effects, these prescription drugs carry warnings against driving
while taking them. The reality is that some people ignore these warnings. According
to one medical survey, 30 percent of prescription drugs are misused in ways
that threaten health. Although the HR Department may know that a driver is
taking antidepressants, divulging this information to a third party, such as a
fleet manager, is a HIPAA violation
Let’s examined a third
example. What if a driver is an insulin-dependent diabetic , who stops taking insulin
and someone overhears this employee in the lunchroom say that he quit taking
insulin? For a diabetic, not taking insulin heightens the risk of going into
insulin shock, perhaps while driving a company car. Can a fleet manager
confirm 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, medical
privacy rights preclude a fleet manager from gaining knowledge about the medical
conditions 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 of
others? HIPAA regulations make it a crime for health care workers or those
privy to this information, such as HR managers, to disclose “individually identifiable
health information” to a third party without the prior consent of the person
involved. Divulging this information is not a trivial matter. HIPAA employs
criminal, 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’s
privacy rule on fleet operations. Nearly every fleet manager, in one way or
another, will be affected by the law’s privacy requirements. Another example of
how HIPAA can impact fleet management is its regulations governing the use of
information from employer-required medical examinations and drug tests.
The HIPAA privacy rule also affects health information gathered by
employers for Workers' Comp or OSHA requirements. Fleet is one of the
largest sources of Workers’ Comp claims, which include injuries from
pulling, lifting, and bending. Could some of these injuries have been
a pre-existing medical condition? HIPAA requires that an employee
release of medical information from the physician to the employer when
pertains to disability paperwork.
The HIPAA Privacy Rule contains an important exception for the use
and disclosure of protected health information when the information is provided
to comply with Workers’ Comp laws. Despite this, attorneys
advise HR managers to get written employee authorization prior to attempting to
obtain information from a physician.
Additionally, fleet managers should note that requests for medical
information under the Americans with Disability Act (ADA) must be kept in
strict confidence. There are significant limitations on what medical information
about 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 management
as it relates to the use and disclosure of medical information about employee
drivers. One fleet manager lamented to me that “HIPAA is the worst thing that
has ever happened to fleet.”
the HIPAA prohibition against using protected health information for
employment-related purposes without employee authorization, especially when it
applies to them. But many fleet managers also believe HIPAA non-disclosure requirements
are counter-productive to fleet safety.
Let me know what you think.