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Are Employer’s Subject to HIPPA?

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The Health Insurance Portability and Accountability Act (“HIPAA”) is landmark legislation designed to safeguard individuals’ protected health information (“PHI”). HIPPA’s primary goal is to ensure the privacy and security of sensitive medical data while also facilitating the smooth flow of healthcare information.

Key aspects of HIPPA:

Privacy Rule: The Privacy Rule establishes national standards for the protection of PHI, including individual rights to access their health information, control its disclosure, and request corrections. Covered entities must implement policies and procedures to ensure the privacy of PHI and provide patients with notice of their privacy practices.

Security Rule: The Security Rule outlines requirements for safeguarding electronic PHI (ePHI) through administrative, physical, and technical safeguards. Covered entities must conduct risk assessments, implement security measures to protect against unauthorized access, and have contingency plans in place to respond to emergencies.

Breach Notification Rule: The Breach Notification Rule requires covered entities to notify affected individuals, the Secretary of Health and Human Services, and, in some cases, the media, following a breach of unsecured PHI. Notification must occur without unreasonable delay and no later than 60 days following discovery of the breach.

Enforcement Rule: The Enforcement Rule outlines procedures for investigating complaints of HIPAA violations and imposing penalties for non-compliance. Penalties can range from fines to criminal charges, depending on the severity and intent of the violation.

Business Associate Agreements: Covered entities must enter into contracts, known as business associate agreements, with vendors and other entities that handle PHI on their behalf. These agreements outline the responsibilities of the business associate in protecting PHI and establish liability for breaches.

Who is Subject to HIPAA?

HIPAA applies to “covered entities” and “business associates.” Covered entities include healthcare providers, health plans, and healthcare clearinghouses. Business associates are entities that handle PHI on behalf of covered entities, such as third-party administrators and billing companies.

Examples of Violations:

HIPAA violations of the Privacy Rule can occur in various ways, often involving unauthorized access, use, or disclosure of protected health information (PHI). Here are some examples:

Unauthorized Access: An employee at a healthcare facility accesses a patient’s medical records without a legitimate reason or authorization, simply out of curiosity or personal interest.

Improper Disclosure: A healthcare provider discusses a patient’s diagnosis or treatment plan in a public area where others can overhear, violating the patient’s right to privacy.

Lost or Stolen Devices: A laptop or mobile device containing unencrypted PHI is lost or stolen, potentially exposing sensitive patient information to unauthorized individuals.

Emailing PHI: Sending unencrypted emails containing PHI to individuals who are not authorized to receive such information, thereby risking interception or unauthorized access.

Inadequate Safeguards: Failing to implement appropriate security measures to protect PHI, such as leaving paper records containing patient information in an unsecured location accessible to unauthorized individuals.

Improper Disposal: Discarding paper records or electronic devices containing PHI without properly shredding or securely wiping the data, leaving sensitive information vulnerable to unauthorized access.

Access by Unauthorized Individuals: Allowing individuals who are not involved in the patient’s care, such as friends or family members, to access their medical records without proper authorization.

Does HIPAA Apply to Employers?

In most cases, employers are not considered covered entities under HIPAA unless they also operate as healthcare providers or health plans. However, there are exceptions. For instance, if an employer sponsors a group health plan, it becomes subject to HIPAA’s privacy and security rules regarding the health information it collects and maintains.

Notwithstanding, employers may find themselves handling PHI when they offer health plans to their employees or when they engage in functions such as the administration of workers’ compensation claims, sick leave, or wellness programs. In these instances, while HIPAA itself may not apply, employers still should adhere to stringent standards to protect the confidentiality, integrity, and security of the health information in their care. While HIPAA may not directly apply to employers, other federal and state laws govern the handling of employee health information, such as the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).


Policies to Protect Employee Health Records

Despite not being directly subject to HIPAA, employers still should implement robust policies and procedures to safeguard employee health records. Here are some key steps to consider:

Limit Access: Only designated individuals with a legitimate need should have access to employee health records. Implement strict controls to prevent unauthorized viewing or disclosure.
Employee Training: Educate employees about the importance of confidentiality and their responsibilities in handling sensitive health information. Regular training sessions can reinforce compliance with privacy policies.
Data Encryption and Security: Utilize encryption and other security measures to protect electronic health records from unauthorized access or cyber threats.
Written Policies: Develop clear and comprehensive policies outlining how employee health information will be collected, stored, and accessed. Include procedures for handling requests for information and responding to breaches.

Written Policies: Develop clear and comprehensive policies outlining how employee health information will be collected, stored, and accessed. Include procedures for handling requests for information and responding to breaches.

While HIPAA may not directly apply to employers in most cases, Employers still have a legal and ethical responsibility to protect employee health information under other regulations. By implementing robust policies and procedures, employers can uphold the privacy rights of their employees while mitigating legal risks and maintaining trust in the workplace.

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What is the “Interactive Process” for Reasonable Accommodation under the Americans with Disabilities Act?

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The Americans with Disabilities Act (“ADA”) requires that employers provide reasonable accommodation to qualified individuals with disabilities, provided that the accommodation does not cause undue hardship. A reasonable accommodation enables the qualified individual with a disability to perform the essential functions of the subject position. Common reasonable accommodations under the Americans with Disabilities Act (ADA) are adjustments or modifications that enable individuals with disabilities to perform their job duties effectively.

What are Examples of Reasonable Accommodations?

Accommodations can vary widely depending on the individual’s needs and the nature of the job, but they often include changes such as:

Modifying Work Schedules: This could involve altering start and end times, allowing for flexible scheduling, or providing part-time work options.

Job Restructuring: This may include reallocating or redistributing non-essential job functions, changing job duties, or redefining roles and responsibilities.

Equipment or Device Modification: Providing or modifying tools, devices, or office equipment to assist an individual in performing their job tasks.

Work Environment Adjustments: Making changes to the physical workspace, such as ergonomic furniture or accessible facilities, to accommodate mobility or sensory impairments.

Policy Modifications: Altering workplace policies to accommodate the needs of individuals with disabilities, such as allowing service animals in the workplace or modifying attendance policies.

Providing Assistive Technologies: Offering software or hardware that assists individuals with disabilities, such as screen readers, voice recognition software, or TTY devices for communication.

Communication Aids: Ensuring effective communication by providing qualified interpreters, note-takers, or transcription services.

Accessible Formats: Providing materials in accessible formats, such as Braille, large print, or audio recordings.

Leave: Granting time off for medical appointments, treatment, or recovery related to a disability.

Reassignment: Moving an employee to a vacant position for which they are qualified if they are unable to perform their current job even with accommodations.

It’s important to note that what constitutes a reasonable accommodation is highly individualized and must be determined on a case-by-case basis. The goal is to enable the employee to perform the essential functions of their job without causing undue hardship to the employer.

How Does the ADA Interactive Process Work?

To address a need for accommodation, the ADA mandates that employers engage in an “interactive process” to identify reasonable accommodations for employees with disabilities. This process is a collaborative dialogue between the employer and the employee to understand the limitations arising from the disability and explore the types of accommodations that could enable the employee to perform essential job functions. The process should be flexible and tailored to the individual’s specific needs.
The interactive process begins when an employee signals the need for an accommodation, either verbally or in writing. Employers should respond promptly, ideally documenting the communication to ensure a clear record of the request and subsequent discussions. During the interactive process, it is crucial for employers to consider the employee’s suggestions, as they are often most familiar with their own needs and potential solutions. However, the employer is not bound to provide the specific accommodation requested if there are other effective alternatives available.

Can the Employer Request Medical Information?

Under the ADA, employers are limited in their ability to request medical information from employees. Generally, employers can request medical information when it is job-related and consistent with business necessity. This need for additional information typically occurs when an employee requests an accommodation under the ADA, and the disability or need for accommodation is not obvious. In such cases, the employer may ask for documentation to understand the nature of the disability and the need for accommodation. However, employers should not request an employee’s complete medical records, as they are likely to contain information unrelated to the disability and need for accommodation. The request for medical information must be specific to the reason for the accommodation and cannot be overly broad.

If an employee provides incomplete or insufficient medical documentation in relation to a request for reasonable accommodation under the ADA, EEOC guidance suggests that the employer has the right to ask for the necessary information to substantiate the employee’s claim of a disability and the need for accommodation. The employer should inform the employee why the documentation is insufficient and allow a reasonable amount of time for the employee to provide the necessary details. If the employee fails to provide the requested documentation without a valid reason, the employer may not have a duty to continue the accommodation process. However, it is crucial for the employer to ensure that the request for additional documentation is made in good faith and not as a means to delay or deny the accommodation.

If medical documentation is necessary, employers should keep all medical information and discussions related to the accommodation confidential, as required by the ADA. All such records should be kept in separate files apart from regular personnel records to ensure confidentiality and access should be limited to authorized personnel only. It is important for employers to train managers and HR personnel on the ADA’s requirements, ensuring that requests are handled appropriately and that the company’s actions are in compliance with federal law.

How Does an Employer Evaluate A Request for Reasonable Accommodation?

The mutual goal of the interactive process is to find an accommodation that serves the employee need, without imposing an undue hardship on the operation of the business. Undue hardship refers to significant difficulty or expense relative to factors such as the employer’s size, financial resources, and the nature of the operation. Small employers may face unique challenges in providing accommodations due to limited resources. Employers can assess the reasonableness of an accommodation under the Americans with Disabilities Act (ADA) by considering several key factors, including whether the requested accommodation will impose a direct threat to the health or safety of others, decrease efficiency in other jobs, cause other employees to carry a significantly increased workload, or conflict with another law or regulation.

In all cases, the ADA does not require an employer to eliminate an essential function of the employee position or lower production standards that are applied uniformly to employees with and without disabilities. The reasonableness of an accommodation is assessed on a case-by-case basis, taking into account the unique circumstances of each request. Employers should consider the effectiveness of the accommodation in enabling the employee to perform their job duties, as well as the accommodation’s impact on the operation of the business. Factors such as the nature and cost of the accommodation, the overall financial resources of the facility or the employer, the number of employees impacted, disruption to normal business processes, and the effect on resources should be assessed. Employers also may consider how an accommodation effects other employees, though the mere fact that an accommodation might impact other employees’ workloads or morale does not automatically constitute undue hardship. Employers also cannot base their decisions on the possible unfounded fears, stereotypes, or prejudices of other workers. Instead, they should focus on the accommodation’s objective impact on the operation of the business.

If a particular accommodation seems too burdensome, employers must evaluate whether other options could meet the employee’s needs without imposing an undue hardship. This assessment may involve looking at alternative accommodations that are less costly or disruptive to the business. The ADA does not require employers to provide the exact accommodation requested by the employee if another effective accommodation is available that meets the employee’s needs. In some cases, a temporary or trial period for the accommodation might be appropriate to evaluate its impact.

dsgordonlaw.com

Richmond Employment Lawyer

What is the Role of Disability Determination Services (DDS) in Social Security Disability Claims?

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Social Security disability claims usually begin at the local Social Security Administration (SSA) field office where the applicant lives. The SSA field office collects and processes applications for disability benefits through various channels, including in-person, mail-in and online applications. SSA field offices first verify non-medical eligibility requirements, such whether the applicant has acquired enough prior work credits to receive SSDI benefits or whether an applicant’s current earnings exceed the threshold for gainful employment.

Once non-medical eligibility is verified, the SSA field office forwards the case to a separate Disability Determination Service office (DDS) for medical evaluation of disability. Though federally funded, DDSs operate as State agencies. In Virginia, Virginia Disability Determination Services partners with SSA and the Virginia Department of Social Services to review and make initial decisions on eligibility for SSDI, SSI, and Medicaid programs. Local DDS offices serve as critical gatekeepers in the disability evaluation process. Their primary responsibility is to assess medical evidence and make the initial determination as to whether a claimant is disabled or blind under the law.

At the initial application stage, DDSs seek and acquire evidence from the claimant’s identified medical providers, relieving the applicant of the burden and expense of ordering their own medical records. If that evidence is insufficient, DDS may order and require a consultative examination (CE) to obtain additional medical assessments and opinions. DDS then forwards the cumulative file information to reviewing physicians to evaluate the evidence and make recommendations regarding the severity of the applicant’s condition and their residual functional capacity. After making a final determination, DDS returns the case to the local SSA field office for appropriate administrative action.

If DDS determines that the claimant is disabled, SSA proceeds to compute and pay-out the subject benefits. If the DDS finds the claimant not disabled, the claimant may appeal the adverse decision though several stages. Following the first appeal, DDS will reevaluate the claim on Reconsideration. If DDS upholds its denial, a claimant may appeal again and then receive an evidentiary hearing before an SSA Administrative Law Judge.

https://dsgordonlaw.com/attorney-consultation-disability.html

Richmond Socials Security Disability Lawyer

Employment Background Checks: An Overview

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Purpose Employee Background Checks

In the dynamic landscape of modern employment, organizations face multifaceted challenges in identifying and selecting the right candidates to join their teams. The hiring process has evolved beyond mere resume scrutiny and interviews. It now demands a thorough assessment of an individual’s background to mitigate potential risks and ensure the integrity of the workforce. The benefits of a sound background screening process are numerous:

Verification of Credentials: Confirmation of academic credentials and past job experience enables employers to identify and hire individuals who possess the requisite skills and qualifications to meet performance needs and expectations.

Mitigating Risks of Misconduct: By requiring applicants to complete comprehensive background screenings, employers can preemptively identify red flags, thereby insuring against potential liabilities and safeguarding organizational assets.

Protecting Business Reputation: The repercussions of hiring an unsuitable candidate extend far beyond the confines of the workplace. Instances of employee misconduct or negligence can precipitate irreparable damage to an organization’s brand image, eroding consumer trust and stakeholder confidence.

Fostering a Secure Work Environment: Background screenings play a pivotal role in this regard by enabling employers to identify individuals with a history of criminal or other unlawful behavior, thereby fostering a secure and harmonious work environment conducive to productivity and collaboration.

When To Conduct Employee Background Checks?

The timing of employee background checks plays a pivotal role in shaping the efficiency and integrity of the hiring process. With many companies, all new hires must undergo a background investigation as a prerequisite for finalizing the job offer. However, conducting background checks on all applicants is neither economic nor recommended for equal employment purposes. Background screening should not be used as a mechanism to reduce a broad pool of initial applicants.

Generally, one of two approaches is commonly used, but once established, a company’s process should be applied consistently. First, the organization may elect to screen identified finalists following the conclusion of interviews. Alternatively, a company may require a background check after making a conditional offer of employment. The latter method is preferred by the Equal Employment Opportunity Commission and may even be required by “ban-the-box” laws in some states. In Virginia, public sector employers may not inquire about an applicant’s criminal history or pending criminal cases on a job application or before an initial interview. This law does not currently apply to private companies, but the EEOC recommends deferring any such questions until after the identification of final candidates for a position. A job application should never ask about arrests.

Note, some professions in Virginia require specific background checks under law. For example, school employees and certain licensed care employees must undergo a criminal background check with the Virginia State Police. Commercial truck drivers similarly must submit to a DOT review.

Who Conducts the Employee Background Check?

While some limited criminal information may be available online to the general public or via State Police inquiries, businesses often utilize professional credit reporting agencies (CRAs) to perform these inquiries, as they have standing databases cultivated for this specific purpose. Depending on the provider, a report might include information on a candidate’s prior areas of residence, educational and professional qualifications, criminal history, driving record, credit background, civil judgments and other information. Importantly, the use of a CRA to conduct an employee background check is considered an order of a “consumer report,” which implicates compliance obligations with the Fair Credit Reporting Act (FCRA). While the FCRA does not limit the manner in which you may utilize background information, it does include strict authorization, notice and disclosure provisions designed to protect employee rights to a fair and accurate report.

What Employee Information is Restricted?

Both private and public sector employers are prohibited from asking about arrests, criminal charges, or convictions related to the simple use or possession of marijuana. If asked to disclose information about criminal charges and convictions, an applicant may exclude information about these offenses. This law does not apply to more serious offenses such as the distribution or intent to distribute marijuana.

Employers also may not require applicants or employees to provide social media usernames or passwords, or ask to be added to a candidate’s list of social media contacts. Likewise, an employer cannot refuse to hire a candidate for refusing to provide this information. However, Virginia law does not prohibit an employer from viewing information about a current or prospective employee that is publicly available. See Va. Code § 40.1-28.7:5.

Employers may not require job applicants to disclose information about expunged arrest records for any type of offense. See Va. Code § 19.2-392.4

Employers may not fire or otherwise discriminate against an employee solely based upon an applicant’s bankruptcy. Certain financial based businesses are excluded. Federal employers may not discriminate against applicants either, but Courts are split as to whether this protection applies to the private sector. See 11 U.S.C. 525 (b).

dsgordonlaw.com

Richmond Employment Attorney

Virginia Minimum Wage Law: Status Update March 2024

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Virginia Governor Glenn Youngkin has vetoed Virginia’s latest proposed minimum wage increase. The subject bill, which had passed the House of Delegates with a 51-49 party-line vote, aimed to raise the current minimum wage of $12 per hour to $13.50 by January 2025 and then to $15 by January 2026. The preceding wage law from 2020 incrementally raised the minimum wage from $9.50 to $12.00 per hour as of January 1, 2023.


Governor Youngkin’s veto of the bill will continue to stir debate across the state. Youngkin argues that the non-market increases in wages would raise costs on small businesses, without regard to economic differences in the varying regions across the state. Advocates for the wage increase argue that it would help working families afford basic necessities and keep up with inflation. Additional debate continues as to whether government mandated wage increases, as opposed to free-market increases, contribute to rises in inflation.


While additional wage increases between 2023 and 2026 required legislative action, Va. Code Section 40.1-28.10 still includes a unique wage adjustment scheme. Beginning October 1, 2026, and every year thereafter, the state must determine the adjusted state hourly minimum wage for the following January 1. The adjusted wage is calculated by adding (i) the current state hourly minimum wage rate to (ii) a percentage of that rate equivalent to the percentage increase in the United States Average Consumer Price Index for all urban consumers (CPI-U) published by the Bureau of Labor Statistics, or a successor index, over the most recent available calendar year. This adjustment ensures that the minimum wage keeps pace with inflation, and the adjustment amount cannot be negative.

Court Strikes Down NLRB Joint Employer Rule

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On March 8, 2024, the U.S. District Court for the Eastern District of Texas vacated the National Labor Relations Board’s (NLRB) 2023 joint employer rule. The new rule, which was set to take effect on March 11, 2024, expanded the criteria for determining joint employer status, potentially increasing the number of businesses classified as joint employers. The vacated rule would have placed more employers at risk of being deemed joint employers, affecting their liabilities and responsibilities towards employees. Under the proposed 2023 rule, an entity could be deemed a joint employer under common-law agency principles if it had authority to control essential terms and conditions of one’s employment, even if the the control was indirect. The Court found that the new rule failed to provide a clear standard for employers to follow.

The ruling has significant implications for businesses, particularly those who work with contractors or franchisees. The current ruling leaves the 2020 joint employer rule in place, which requires direct and immediate control over employees to establish a joint employer relationship. However, other U.S. District Courts are certain to consider the issue in their jurisdictions, likely resulting in a final review by the U.S. Supreme Court.

The Pregnant Workers Fairness Act

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The new Pregnant Workers Fairness Act (PWFA) provides pregnant workers with options for reasonable accommodations to continue their employment without risking their health or the health of their unborn child. The act, which took effect in June of 2023, is a critical supplement to existing laws that currently protect against pregnancy discrimination.

Key Provisions of the PWFA

Similar to Title VII and the Americans with Disabilities Act, the PWFA applies to employers with 15 or more employees. The Equal Employment Opportunity Commission is responsible for issuing regulations to implement and enforce the act. Under the PWFA, employers must provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer to suffer “undue hardship.”

The PWFA borrows the same definitions of “reasonable accommodation” and “undue hardship” as utilized under the Americans with Disabilities Act. “Reasonable accommodations” are changes to the typical work environment or work process. An “undue hardship” is one that cause a significant difficulty or expense for the employer. Suggested accommodations might include: additional break times, flexible hours, uniform modifications, or excuse from strenuous activity or unsafe exposures.

For employers, the PWFA mandates a balance between the needs of the business and the health of their employees. It encourages a collaborative approach to find suitable accommodations that do not impose an undue hardship on the operation of the business. For employees, the act provides a clear legal framework that supports their right to work and maintain a safe and healthy pregnancy.

Can You Return To Work If You Receive Social Security Disability Benefits?

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Navigating a return to work can be challenging when you’re receiving Social Security Disability (SSDI) benefits. However, the Social Security Administration (SSA) offers programs that allow beneficiaries to work without immediately losing their benefits. In general, you must report work and any income earned while you are receiving SSDI benefits, including workers’ compensation benefits. If you earn more than $1,050 in gross income per month, you must report these wages through your Social Security account. Failure to report income can result in the termination or suspension of your benefits and action by SSA to recoup overpayments.

Trial Work Period (TWP): The TWP allows you to test your ability to work for at least 9 months. During this period, you’ll receive your full SSDI benefits regardless of how much you earn, as long as you report your work activity and continue to have a disabling impairment. In 2024, any month where you earn over $1,110 before taxes counts toward your TWP.

After the TWP, you enter a 36-month extended period of eligibility (EPE). During this time, you still can receive benefits for any month your earnings are below the substantial gainful activity (SGA) limit, currently set at $1,550, or $2,590 if you’re blind for 2024.

Medicare Coverage: During the TWP and for 93 months thereafter, you can typically retain your Medicare Part A coverage at no cost. If you have Part B, you can keep it by continuing to pay the premium.

Ticket to Work Program: The SSA’s Ticket to Work program is designed to help SSDI recipients find suitable employment and attain financially independence. The program is offered at no cost and participation is voluntary. This program aims to help people with disabilities move towards financial independence by connecting them with employment services and support for success in the workforce.


Additional information and resources can be found by visiting the Choose Work website.

For legal assistance with a pending Social Security Disability Appeal, call attorney D. Scott Gordon at 804-440-6557 or visit dsgordonlaw.com

Update: Social Security Disability Rate Adjustments for 2024

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The Social Security Administration has announced adjustments in various disability benefits and thresholds for 2024. Here’s what you need to know:

Substantial Gainful Activity (SGA): For individuals with disabilities (excluding blindness), the SGA amount is now $1,550 per month1. For those who are blind, the SGA is $2,590 per month.

Trial Work Period (TWP): The monthly earnings threshold for TWP months has been set at $1,1102.
Federal Benefit Rate (FBR): The 2024 FBR for Supplemental Security Income (SSI) is $943 for an individual and $1,415 for a couple3.

Student Earned-Income Exclusion (SEIE): SSI beneficiaries under age 22 can earn up to $9,230 a year without affecting their eligibility or benefits.

For assistance with your Social Security Disability Claim, call 804-440-6557 or visit dsgordonlaw.com


NLRB’s New Joint-Employer Rule

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The National Labor Relations Board (NLRB) is the federal agency that enforces the National Labor Relations Act (NLRA), which protects the rights of workers to organize and bargain collectively with their employers.

On October 27, 2023, the NLRB published a final rule that changes the standard for determining when two or more entities are joint employers of a group of employees under the NLRA. In the modern workforce, it is not uncommon for an employee to be technically hired by one entity while being contracted to provide services to another business that essentially controls their daily work performance. The new rule provides more clarity and guidance to parties covered by the NLRA regarding their rights and responsibilities when more than one statutory employer possesses the authority to control or exercises the power to control particular employees’ essential terms and conditions of employment.

The new rule implements established common-law standards by considering the an employers’ authority to control essential terms and conditions of employment, whether or not such control is exercised, and without regard to whether any such exercise of control is direct or indirect. Essential terms and conditions of employment include: wages, benefits, and other compensation; hours of work and scheduling; the assignment of duties to be performed; the supervision of the performance of duties; work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; the tenure of employment, including hiring and discharge; and working conditions related to the safety and health of employees.

The effective date of the rule for new cases is February 26, 2024. For more information, you can read the NLRB’s fact sheet.