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.

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 pushing, pulling, lifting, and bending. Could some of these injuries have been caused by a pre-existing medical condition? HIPAA requires that an employee authorize the release of medical information from the physician to the employer when it 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.

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.”

Everyone supports 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.

mike.antich@bobit.com