Delphi Policy Raises Concerns

May 13, 2005
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COOPERSVILLE — When is it OK for a company to look into an employee's medical records? When it means the difference between a paid sick day and an unexcused absence, according to automotive parts manufacturer Delphi

In April, Delphi's Coopersville fuel-injector manufacturing facility updated its "attendance management systems," said company spokesperson Luce Rubio. Bringing the plant's procedures in line with other Delphi operations meant asking certain employees to sign a waiver that would allow company officials access to elements of the employee's privileged medical information.

"We're not looking for a history of medical information," said Rubio, adding that company officials would be looking for verification of treatment on a specific day.

Generally, Rubio said, Delphi officials take a note from an employee's doctor at face value. However, if the note contains incomplete or illegible information — or if the employee has a history of absenteeism problems — supervisors are likely to be more fastidious.

"If you were absent for the first time in two years, they would probably take your word for it," said Rubio. "But if you're absent every Monday for six months, there's probably something different that needs to happen." Implementing the use of the waiver is one more "tool" Delphi managers can utilize in dealing with chronic absenteeism.

For the $28 billion-a-year auto parts giant, controlling absenteeism is an ongoing fight. Rubio said that, while individual facilities' rates vary, the company's overall absenteeism rate is around the industry average of 10 percent. As such, it's very important to crack down on employees who abuse sick time for personal reasons.

Because of current privacy laws, the process of checking up on suspicious absences is not as easy as it used to be.

"Under laws like FMLA (Family Medical Leave Act), you can't just go to the doctor, call him up and get more information," said Norbert Kugele, a partner at law firm Warner Norcross & Judd who specializes in medical privacy cases.

The Health Insurance Portability and Accountability Act of 1996, commonly known as HIPAA, places further restrictions on a company's access to employees' medical information.

"Under HIPAA, an employer can't look at its health plan records to make employment decisions about individuals. If you say you need a day off because you have diabetes and you need to go see your doctor, they can't look at your health records to verify that you're seeing a doctor (to treat) diabetes. Also, (employers) cannot condition benefits under the health plan based on whether the employee signs the waiver," Kugele said.

But in this case, Kugele said, Delphi seems to have crafted a policy that cuts as close to the guidelines of admissibility as possible, while still respecting employees' rights under the law.

"I won't look at this and say, 'This is clearly crossing the line.' But it does look like it comes pretty close," he said.

"HIPAA only applies to the health plan itself; it does not apply to the employer," he said. "The employer can presumably condition non-health plan benefits (like paid sick days) on the signing of the authorization. I do think that's permissible under HIPAA."

Kugele said that he understands Delphi's desire to access the information in order to curb absenteeism, but he wonders at what cost the policies should be implemented.

A story in the Detroit News quoted a Delphi employee who felt that failure to sign the release form would result in the loss of his job.

"You have to weigh the extent of the problem vs. perceptions that are created by the policy," Kugele said. "This charge — that (employees) are being coerced to sign authorization forms — I don't know if there's any truth to it, but again, I think you have to balance that bad press vs. the benefits (of the policy)."

Rubio insists that no one is forced to sign the waiver. "The employee can choose to not sign the form," she said. "But if we aren't able to verify the medical necessity of the absence, it will be treated as an unexcused absence."

Rubio also points out that hourly union employees at the Coopersville plant are not treated any differently than the company's salaried employees, herself included. "And if you know I love football and every Tuesday I'm calling in sick, you're probably going to figure out that something is going on," she said.    

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