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Auron

Medical Consent

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Hey guys, im flailing here and looking for some guidance. I was recently

terminated from a position i held for 5 years. No prior issues at all. The

company currently running this aspect of the business suddenly decided to

partake in an electrodiagnostic baseline system. I literally walked in one

day and was told that i had to submit to the examination or be fired. I refused

and was immediately put on administrative leave pending termination.

Events transpired so quickly that im still partially in shock.

Ive began the process of filing a claim with the EEOC when my research lead

me to information about how the company was circumventing the ADA
requirements for the definition of a "medical exam"  and "fitness for duty"
despite the EFA Exam being almost textbook definitions of both.

This of course makes my situation worse. Im no fan of the new company that

took over my position, but i REALLY like the work and would like to get back to

it. There are not other similar options for me. But i just cant get over the morality

of being forced to submit to, (what i consider) a gross violation of my privacy

and personal being. Nor can i abide giving my medical information to a

company that has no accountability or HIPAA oversight.

I have a couple of days before my lawyer can fit me in to discuss, but does

anyone have any suggestions about how to keep my job AND still refuse
to submit to testing? Im thinking there has got be some legality in an

employer forcing an employee to consent to a purely financial based
examination?

Thanks in advance!

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What is an "electrodiagnostic baseline system" and why did the company decide such an exam was necessary?  The only type of test that comes to mind is a lie detector test.

 

33 minutes ago, Auron said:

employer forcing an employee to consent to a purely financial based examination?

How is the alleged examination a "financial based examination"?  Is the company being paid for the employee's participation?

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11 hours ago, RetiredinVA said:

What is an "electrodiagnostic baseline system" and why did the company

decide such an exam was necessary?  The only type of test that comes to

mind is a lie detector test.

 

How is the alleged examination a "financial based examination"?  Is the

company being paid for the employee's participation?

 

Its more like and EKG, except its for muscle and soft tissue function

than heart rhythms. The procedure is that the employee is taken to

a secure part of the building, stripped to his/her underwear, 15-19

electrodes are placed all over their body, and then they are zapped

during pre-designated set of excerises to determine their range of

motion, hidden injuries, and inherent strength of the muscles

themselves. The data is then locked up until you have a work-related

injury, at which point you are forced to submit to another test, and

they use the baseline to determine your actual injuries, extent of your

pain, and when the injury ACTUALLY occurred. If the company determines

the injury happened before the baseline test, or was a previous injury

that just happened to be exacerbated by the work incident, then its an

automatic denial of WC.

I say "financial" because, though the benefits of the procedure are
well known, companies use it almost exclusively to lower worker

comp payouts. The system "objectively" tells the courts whether

youre experiencing an actual injury, how old that injury is, and whether

your treatments are improving your injury or not. The company claims

its a "business necessity" because it lowers their expenses under WC
.... which means more profit, which means "necessity."

The 3rd party company that administers the test gets around ADA by

not having medical personal, labs, and claiming their equipment (which

can tell how old an injury is and how much pain its causing you) isnt used

to collect any medical data other than physiology.

Even though science says its a legitimate medical tool, to me there is too

much grey area/no accountability to trust that either company wont use

the information gathered against us given the chance. Its the reason

employers are not allowed to demand DNA (yet) for simple issues - the

shear amount of potential information regarding unknown health issues

is too great to trust in the hands of a non-medical business.

Despite what both companies claim, I think this is a medical exam... if it

walks like a duck, quacks like a duck... ... ...

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7 minutes ago, cbg said:

So, have you filed a worker comp claim? When? For what injury or illness? Were other employees required to take this same test?

 

No, i refused to submit to the baseline because i was afraid
of what my employer was trying to discover. According to my

supervisor all employees are required to submit to examination -
apparently the company has being using the exam as part of

their conditional-offer for some time. The question of legality

comes in as whether they are allowed to do it to current

employees as well.

The way i look at it, i will have to prove this test is medical to

win - i dont think i have the finances to do that. My question here

is whether or not there are alternative directions to take to

re-secure my job without allowing these companies unfettered

access to my physical person?

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Nope. Even if it is "medical" and it clearly is it would only be a violation of ADA if they were to rescind the job offer because of an ADA protected disability. And fro your description the employer isn't even going to have access to the results of the test.

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1 minute ago, PayrollHRGuy said:

Nope. Even if it is "medical" and it clearly is it would only be a violation of

ADA if they were to rescind the job offer because of an ADA protected

disability. And fro your description the employer isn't even going to have

access to the results of the test.

 

According to ADA, an employer ONLY has a right to require a "medical"

examination on an already hired employee IF they have suspicion of a

specific health concern AND the exam specifically involves said concern.

If my boss sees me bumping into things, and eyesight is a requirement of

the job he can legally assume i am having eye issues. BUT he would have

to document the issues prior, and the exam would have to be vision related.

If my job were listening to recordings an eye exam would be illegal. If he

offered no proof, any exam would be illegal. If the exam was running a

mile, it would be illegal. ADA is VERY specific regarding the scope of exams

allowed to be given to current employees.

My trouble is that this test is (apparently) not considered a medical exam

under ADA/EEOC Guidelines. My case would require me to establish that

is was. I cannot find any caselaw to back me up so any legal action would

be charting new territory.

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13 hours ago, Auron said:

According to ADA, an employer ONLY has a right to require a "medical"

examination on an already hired employee IF they have suspicion of a

specific health concern AND the exam specifically involves said concern.

 

Wrong.

 

First the ADA is only in play if they are looking for an ADA covered disability. Since the employer is going to have no access to the result of the test it can't possibly be used against you if a disability is found. It is a base line test that can be used to check for impairment should you at some point in the future.

 

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15 hours ago, PayrollHRGuy said:

Nope. Even if it is "medical" and it clearly is it would only be a violation of ADA if they were to rescind the job offer because of an ADA protected disability. And fro your description the employer isn't even going to have access to the results of the test.

 

I agree that it is clearly a medical exam; the EEOC says as much in it's explanation of what constitutes a medical exam in its enforcement guidance. And that being the case, the EEOC says the rule for testing current employees (as opposed to new applicants is this: "Once you have hired an applicant, you cannot require a medical examination or ask an employee questions about disability unless you can show that these requirements are job related and necessary for the conduct of your business. You may conduct voluntary medical examinations that are part of an employee health program." EEOC Publication on Employer Responsibilities under the ADA. Now the question becomes whether this test is "job related and necessary for the conduct of [the employer's] business"? Considering that the test hadn't been need for the first five years the OP was working there and that it's sole purpose is to weed out invalid worker's comp claims, I'd say the answer is no. If the employer wants to start a screening of all new employees for that, the rules for new employees may allow that. But the rule for existing employees is narrower. I think the employer is on shaky ground on this one. The OP might want to consult an attorney who litigates ADA employment claims about it. A call from the lawyer to the employer might get the employer to back off the threat of termination for the refusal.

 

 

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1 hour ago, PayrollHRGuy said:

First the ADA is only in play if they are looking for an ADA covered disability. Since the employer is going to have no access to the result of the test it can't possibly be used against you if a disability is found. It is a base line test that can be used to check for impairment should you at some point in the future.

 

Given what I just posted about the EEOC's explanation of the rule for medical exams for existing employees, that's clearly not correct.

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From https://www.eeoc.gov/policy/docs/guidance-inquiries.html

 

Under the ADA, an employer's ability to make disability-related inquiries or require medical examinations is analyzed in three stages: pre-offer, post-offer, and employment. At the first stage (prior to an offer of employment), the ADA prohibits all disability-related inquiries and medical examinations, even if they are related to the job.(6) At the second stage (after an applicant is given a conditional job offer, but before s/he starts work), an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.(7) At the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.(8)

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15 hours ago, PayrollHRGuy said:

At the third stage (after employment begins), an employer may make disability-related

inquiries and require medical examinations only if they are job-related and consistent

with business necessity.(8)

 

This is the one of the very few (if not only) ruling that affects "any"

employee regardless of health under EEOC guidelines. The purpose

is to prevent employers from seeking out unknown disabilities the

employee may have even without their own knowledge. (Case text

refers to breast exams - its possible for an employer to gain

knowledge of cancer even before the employee knows about it, ergo

a mammogram is an ADA Prohibited examination.)

The other side of your original statement is the "fact" that the

employer does not have access to the information at time of collection.

I have issues with this on two levels; first being that since the 3rd party

company is not bound by HIPAA regulations, they are merely pinky-

swearing they will keep the information private and away from my

employer, ect... and there is no legal recourse if they decide to, say,

post the info on Snapchat since the consent allows them freedom

to do whats in their "best" interest as opposed to mine. Second -

The information is only private so long as i do not file for workers comp.

Should I, again hypothetically, break my little finger next month, the

entire datafile would be released to my employer, insurance, and their

medical  proxy - at which point any inference of potential injury/disablity

is then laid out in the open, bypassing any/all ADA protections.

 

Personally i would like to think both the 3rd party company and my

employer have my best interest in mind, but i simply cannot take their

word (especially the 3rd party) that if the EFA reveals some defect

in my health, they simply will ignore it.

 

My street level problem still remains - how do i get my job back without

either incurring the wraith of my employer (who in reality may or may

not even give a damn) AND not submitting to the exam (at least under

its current setup?)

 

The truly confusing part of this to me is that i was a better than average

employee, well liked by both management and customer, with no blemishes

at all on the record. The average savings of an EFA translates to $6000 -

the highest payout savings i could find on public record (which was also

reversed on appeal was ~$80k.) Im awestruck theyre willing to sacrifice

a skilled, hard-to-replace laborer instead of just wavering me out...

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23 hours ago, PayrollHRGuy said:

From https://www.eeoc.gov/policy/docs/guidance-inquiries.html

 

Under the ADA, an employer's ability to make disability-related inquiries or require medical examinations is analyzed in three stages: pre-offer, post-offer, and employment. At the first stage (prior to an offer of employment), the ADA prohibits all disability-related inquiries and medical examinations, even if they are related to the job.(6) At the second stage (after an applicant is given a conditional job offer, but before s/he starts work), an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.(7) At the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.(8)

 

Yep, that last sentence is what I stated too.

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Quote

What makes you think that HIPAA does not apply to the third party?



Because both companies are claiming that nothing about this test is "medical,"

hence the root of my problem. I would need to prove that the EFA is not exempt

under EEOC guidelines as a "medical exam."

 

Quote

Yep, that last sentence is what I stated too.



Which is why i quoted you on it! 🙂
 

Quote

And reducing BS work comp claims is or at least could be argued a

business necessity.[/quote]

 

Possibly,  but at what cost? The GOP has already approved DNA testing of you

and your family members to reduce health insurance costs by the employer,

its just a matter of time before corporations manage to shelve ADA altogether...


-------------------------------------------------------------------------------------------------------------------------------->>>

 

On another topic of the same situation - would it be possible for me to argue

sexual harassment for being forced to strip down to my underwear and made

to walk from one side of the building to the other? Seems like a stretch, but

in the current climate im wondering if i could threaten a 1-2 punch in order to

have them reconsider the termination?

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6 hours ago, PayrollHRGuy said:

 

And reducing BS work comp claims is or at least could be argued a business necessity.

 

I think that's a weak argument, especially when the company had not had the need to do it previously. Certainly I can see where it is desirable from the employer's point of view, but truly necessary? I don't think so. And there is the matter that there are two parts to it: it must be job related, too. If the OP has been able to do the job the past five years without the need for this exam, I think the employer would be hard pressed to claim that it is job related now. I hope the employer got a good legal opinion on this before it embarked on this path.

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1 hour ago, PayrollHRGuy said:

"The baseline test is not read, which avoids ADA complications."

 

https://www.emergedx.com/technology/

 

 

 

Oh Well, i guess ill just have to take their word on it then...

Thanks for your help guys, i think we've reached the point of

the snake eating itself. Ill figure out on my own. I appreciate the

insight, ill let you know how it plays out...

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Just as an FYI, I am required by my employer to take and pass a certificate test on HIPAA every year. It's not whether not the companies say it's medical information that matters; it's whether it IS medical information that matters. They can call it a toaster if they want to, but calling it a toaster doesn't make it a toaster, and calling it "not-medical-information" doesn't make it not-medical-information either. If it's medical information, and I think we all agree that it is, HIPAA is invoked whether the third party administrator admits that's it's medical information or not. (This assumes that all other criteria are met.)

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11 hours ago, PayrollHRGuy said:

Did a little more research on it. From the company that is marketing the test...

 

 

"The baseline test is not read, which avoids ADA complications."

 

https://www.emergedx.com/technology/

 

 

 

I'd love to see the legal analysis they have for that statement. The statute itself doesn't say that as long as a test is done but not read it is ok. The statute specifies simply when the test can be done at all. Of course, I'm skeptical about a lot that is in that marketing piece, not just this statement.

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13 hours ago, Tax_Counsel said:

I'd love to see the legal analysis they have for that statement.

 

So would I.  But I don't see how it would be much different than baseline hearing tests that OSHA requires in some cases.

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1 hour ago, PayrollHRGuy said:

 

So would I.  But I don't see how it would be much different than baseline hearing tests that OSHA requires in some cases.

 

It makes a huge difference if the law mandates the testing for all employees. In that case, EEOC regulations make it clear the medical tests are permitted. Specifically 29 CFR § 1630.14 states:

 

Quote

Section 1630.14(c) Examination of Employees
      This provision permits employers to make inquiries or require medical examinations (fitness for duty exams) when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. The provision permits employers or other covered entities to make inquiries or require medical examinations necessary to the reasonable accommodation process described in this part. This provision also permits periodic physicals to determine fitness for duty or other medical monitoring if such physicals or monitoring are required by medical standards or requirements established by Federal, State, or local law that are consistent with the ADA and this part (or in the case of a Federal standard, with section 504 of the Rehabilitation Act) in that they are job-related and consistent with business necessity.
      Such standards may include Federal safety regulations that regulate bus and truck driver qualifications, as well as laws establishing medical requirements for pilots or other air transportation personnel. These standards also include health standards promulgated pursuant to the Occupational Safety and Health Act of 1970, the Federal Coal Mine Health and Safety Act of 1969, or other similar statutes that require that employees exposed to certain toxic and hazardous substances be medically monitored at specific intervals. See House Labor Report at 74-75.
      The information obtained in the course of such examination or inquiries is to be treated as a confidential medical record and may only be used in a manner not inconsistent with this part.

 

(Bolding added.) As you can see, the regulation takes into account tests mandated by other laws, and with respect to your OSHA example, the regulation specifically says that tests mandated by OSHA fall into that category.

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