Question:

Our hospital requires employees to submit an excuse from their physician if they are out of work for a certain number of days.  After some unfortunate incidents, the hospital also calls the physician to verify that he or she wrote the excuse.  Recently, an employee claimed this practice violated the employee’s rights under the Americans with Disabilities Act (“ADA”) and HIPAA.  Is he right?

Answer:

No.  With respect to the ADA issue, the federal Equal Employment Opportunity Commission (“EEOC”) has said it does not violate the ADA for an employer to ask for a doctor’s note to explain an absence.  Here’s the EEOC guidance:

May an employer request an employee to provide a doctor’s note or other explanation to substantiate his/her use of sick leave?

Yes. An employer is entitled to know why an employee is requesting sick leave. An employer, therefore, may ask an employee to justify his/her use of sick leave by providing a doctor’s note or other explanation, as long as it has a policy or practice of requiring all employees, with and without disabilities, to do so.

With respect to HIPAA, when an employee gives an employer (such as the hospital) a doctor’s excuse to document that the employee was ill, that excuse becomes part of the hospital’s “employment records.”  These employment records are excluded from the definition of protected health information, so HIPAA doesn’t apply to them.

Here’s how the federal government addressed this issue in the preamble to the 2002 final rule:

When the individual gives his or her medical information to the covered entity as the employer, such as when submitting a doctor’s statement to document sick leave…that medical information becomes part of the employment record, and, as such, is no longer protected health information.

67 Fed. Reg. 53181, 53192 (Aug. 14, 2002).

If the hospital calls a physician to verify an excuse, the hospital is not in violation of HIPAA because it is not disclosing information covered by HIPAA.  However, the physician who receives the phone call should proceed cautiously to avoid violating HIPAA.