Human Resource Blog

HIPPA

I’m a supervisor who desires to take care of his employees. There have been instances in the past where my Human Resources Department has unintentionally allowed personnel issues fall through the cracks, which strengthens my desire to involve myself with all aspects of personnel management. My Human Resources Department insist that I don’t need to be involved with the ADA process or other issue which could be related to the health (FMLA, Short Term Disability, ETC…) and therefore the availability of my employees. I want to be involved to ensure my employees are taken care of and to ensure these issues don’t fall through the cracks. Is there any Law or regulation that would allow the HR Department to shut me out like this?

Many people make this mistake, but it is actually HIPAA, the Health Insurance Portability and Accountability Act.

Yes, we can think of several million reasons why you should not get involved in HR issues — the several million dollars that your company stands to lose in a discrimination lawsuit because you are not familiar with every nuance of HR laws and regulations. FMLA, HIPAA, ADA, GINA and similar laws are so complex that some attorneys spend their entire life studying only one of them, and suing hapless supervisors who make a mistake.

You might think this is an exaggeration, but let us assure you that it is not. The software giant GoDaddy.com recently paid more than $6 million to a single employee, for one off-hand comment uttered by a supervisor, one time.

You might be tempted, for example, to terminate an employee on intermittent FMLA who did not call in time to report her absence. Under some circumstances this would be entirely lawful, and under others it could result in the employer losing a multi-million dollar lawsuit. That is why it is wise to allow others who are trained in this specialized field to assume that liability for the company.

Other examples:

After November 21, 1009, if an employee is absent for his uncles funeral and you ask him about the cause of death, you will be committing genetic discrimintion in violation of GINA. (Before that date, the conversation was entirely lawful.)

In particular, under ADA an employees disability cannot be considered in making any employment decisions such as scheduling, promotion, salary, etc. The best way to do this is for HR to handle any ADA discussion, without involving the supervisor. Then, the supervisor cannot be guilty of disability discrimination, because he or she does not have protected information about the disability. If you are involved in the ADA conversation, it is impossible for the employer to prove that this information was not a factor in employment decisions by the supervisor.

FMLA permits an employer to call the certifying physician and ask questions about the employees condition — but supervisors are specifically prohibited from being the person to contact the doctor.

HIPAA protects information learned as a benifits coordinator, but not information the supervisor possesses from other conversations. The best way to handle this is for HR — not the supervisor — to handle all benefits questions. And there are many more such pitfalls that a supervisor faces.

Your assertion that you want to make sure your employees are properly taken care of also indicates that you are less than objective on HR issues. As you noted in your question, supervisors are often tempted to violate federal or state regulations due to staffing limitations.

Since you are concerned about HR not appropriately addressing these issues, by all means monitor their performance. If you find that HR has not addressed an issue or has allowed it to *fall through the cracks* then bring that to the attention of the appropriate supervisor within the company, at the time it happens. But it is unwise to try to circumvent an entire department because one person made a mistake, one time. (It is also possible that what you perceived as a mistake was an unavoidable result of the complex federal regulations.)

We will also note that if you become involved in HR, and something does *slip between the cracks* then HR can blame it on you.

If you feel so strongly attracted to HR, by all means take some HR courses at the local university, get certified by SHRM and look for a job in the field.