The rising costs of absenteeism and disability have compelled many organizations to put a new emphasis on actively managing disability claims in their organization. Consequently, employers are increasingly asking their insurers or third-party disability adjudicator to share information about a claim or a claim’s progress so that they might better manage the employee’s absence and eventual return to work.

For most straight-forward claims where an employee is off on disability following a fracture or recovery from surgery, an employer is able to get the information they need to manage the resourcing component of an employee absence, often from the employee him or herself. However, as claims become more complex or as a claim is layered with complications that extend its duration, many employers experience frustration due to restrictions regarding the disclosure of personal medical information by their insurer.

Medical information collected and disclosed during disability claims submission and adjudication is protected by several levels of privacy legislation: Federally, there is the Personal Information and Protection of Electronic Documents Act (PIPEDA) and Freedom of Information and Protection of Privacy Act (FIPPA). Each province and territory also has privacy legislation regarding information collected by government agencies, and additional legislation pertaining to the protection of personal information in the private sector. And, while the intention of human rights legislation is to prevent discrimination on several prohibited grounds, it also indirectly protects a person’s right to privacy.

Though employers certainly understand the value and importance of privacy legislation for their employees, they can feel hindered by the resulting restrictions in the flow of information or what feels like a complete lack thereof. Employers need information in order to back fill resources for a disabled employee’s role—how long will the employee be off? Will they need to come back on a graduated basis or on modified duties? How temporary a solution will we need? It’s very difficult to temporarily staff a position without at least a general sense of the parameters. Additionally, employers require time to arrange for modified duties or graduated return to work, address any barriers to a return to work, prepare the supervisor and work team for the disabled employee’s return, shift responsibilities between roles as need be, or ask other employees for support during the transition period.

The protection of personal information is important for all parties involved. An employee may not want their employer to know about a sensitive medical condition for many reasons. They might fear that its disclosure could hinder opportunities for advancement or colour the way the employee or their ability to perform their job is perceived. Most employers don’t want to know the particulars of an employee’s medical condition. For them, separation from knowledge of a particular condition or an employee’s medical history is important in order to maintain their plausible deniability in future.

Although an employer or plan advisor can usually access aggregated historical claims information for trend and experience analysis, accessing information on active claims is significantly more challenging. Additionally, because the legislation is open to some interpretation, what is and isn’t disclosed and the minimum thresholds that drive access to information vary from insurer to insurer: For example, some insurers will not disclose prognosis information because they feel it could reveal the disabled employee’s condition, while others have this information easily available.

Regular communication between employer and employee, and employer and insurer is key. Regular check-ins with a disabled employee without asking for specifics of their condition or treatment helps the employer manage their human capital requirements while helping the employee stay connected to the workplace during their extended absence. Monthly conference calls or regular status emails from the insurer can open a dialogue that ensures that employers are aware of where a claim is in the process and likely outcomes if known.

While an insurer can remain respectful and compliant to privacy legislation, they can simultaneously manage the employer’s expectations regarding the duration of the claim and what the return to work might look like. A more collaborative partnership with the employer’s disability management provider can result in both parties truly understanding what the other’s position is, and requirements are. Then, both can work toward a compromise so that each gets what it needs.

But what if an employee refuses contact with their employer during their absence? Employers can feel very obstructed when the employee chooses to separate themselves from their workplace and not engage with their employer during their absence. This can be particularly problematic with more complex claims, especially when the employer is unaware of complications or obstacles to recovery at play, and their insurer is unable to provide details.

While an employee has a right to keep confidential medical information private and are under no obligation to share personal details of their claim with their employer, they do have an obligation to provide medical information to substantiate their disability claim, or to provide sufficient information to substantiate a workplace accommodation. In fact, a recent arbitration board decision in Ontario found that “although an employer cannot discipline an employee for refusing to disclose confidential medical information, the employee may be denied sick benefits, or it may be appropriate for the employer to refuse to allow the employee to continue or return to work until necessary such information is provided” (Complex Services Inc. v. Ontario Public Service Employees Union, Local 278).

However, unless the employer has an HR policy regarding short- and long-term disabilities that states otherwise, as long as an employee continues to engage with the insurer, provides the medical information required and participates in their treatment program, they are not required to keep their employer in the loop.

A solution to this scenario is the involvement of an independent third party that can work as a facilitator between the employer, the insurer and the disabled employee, with the employee’s written consent. Such an arrangement creates the required separation between employee, employer and insurer, can facilitate the flow of information while still adhering to the privacy requirements of all parties.

Privacy legislation is here to stay and a completely standardized approach to disclosure of information by all insurers is unlikely. The best strategy for employers managing disability claims is to foster a collaborative partnership with their insurer with regular communication. That way, employers can be sure that privacy requirements are being respected and they get the information they need to manage their workforce.

Kim Siddall is an associate vice-president with Aon. She has more than 20 years of experience in the health and benefits industry. These are the views of the author and not necessarily those of Benefits Canada.
Copyright © 2018 Transcontinental Media G.P. Originally published on benefitscanada.com

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