This weeks question comes from Tara S. from Fremont, who writes:
Q: I follow your column regularly and took particular interest in your April piece on workplace injuries at the Tesla plant, a major employer in my community. Now, I’m seeing reports that the company may be using new onsite medical services to downplay injury reporting and force injured workers to return to their jobs. What can you tell us about onsite medical clinics and how they impact injured workers’ rights?
A: Thank you for your question, Tara, and for your concern for your neighbors at the Tesla plant in Fremont, which employs more than 10,000 workers. Their recent partnership with a medical service to provide onsite occupational health services reflects both the longstanding practice of many large manufacturers and the more modern trend, particularly in the tech field, of bringing employee benefits in-house.
Each year, millions of U.S. workers suffer workplace injuries and illnesses and many billions of dollars are spent in their treatment. It is no wonder, then, that ever more employers are seeking control over how this money is spent. In fact, a majority of large employers now offer some sort of medical services on premises, largely contracaed through third party vendors. Services provided vary widely by industry and employer, some staffed by a single nurse or physician’s assistant to treat acute injuries, many offering pharmacy services and physical therapy, and still others offering a high-end suite of preventative and complementary care options. While a variety of large companies employing mainly desk workers have developed comprehensive onsite primary care and wellness programs, Tesla’s arrangement looks more like the traditional occupational clinic model, with a focus on first aid and triage for musculoskeletal injuries.
Contracting with third-party vendors adds various legal obligations, including ensuring proper accreditation (in California, for example, medical practices must be physician owned and supervised), allocation of liability (especially when additional layers of subcontracting are involved), coordination with existing benefit plans and ACA regulations, and compliance with any applicable collective bargaining contracts. One of the main challenges concerns workers’ privacy interest in their own medical information. If the onsite healthcare facility provides services beyond basic first aid, it likely meets the federal definition of a “covered entity” under the Health Insurance Portability and Accountability Act (HIPAA) and, as such, all patient records are protected by privacy regulations that prohibit unauthorized disclosure of individually identifiable health information to the contracting employer. This complicates matters when an employer, like Tesla, seeks to use the healthcare provider to evaluate employees’ fitness to work and qualification for work accommodations or medical leave. In particular, employees may become understandably confused about where the lines are drawn between onsite healthcare providers and company management, and thus fear discrimination from their supervisors for a disability status determined by an onsite doctor or, conversely, inadequate treatment from medical staff due to employer pressure to return injured workers promptly to their tasks. Moreover, employees may worry that onsite contractors will be so entangled with company management that they will make inappropriate diagnoses so as to reduce an employer’s occupational safety record.
Indeed, based on recent reporting, these concerns appear to be common among workers in the Fremont Tesla plant. A number of employees have complained of inadequate medical treatment and inability to request appropriate work modifications and leave for fear of losing their jobs. Even former clinic staff have reported unethical medical practices, including refusing to call 911 in emergency situations and failing to stock necessary medical equipment, use of which would implicate legally mandated reporting to the California Department of Occupational Safety and Health. It should be noted that Tesla disputes these allegations.
If true, however, Tesla would hardly be alone in systemically diminishing reporting of occupational injuries. A 2009 study by the U.S. Government Accountability Office found that occupational health practitioners routinely experience pressure to downplay work-related injuries and illnesses and that workers regularly fear disciplinary action for requesting accommodations. The U.S. Occupational Safety and Health Administration (OSHA) has levied significant fines on a number of employers for patterns of inaccurate reporting.
Notwithstanding the legal and logistical complexity injected by onsite third-party medical services, workers should know that employment and whistleblower statutes still protect them from employment retaliation for reporting violation of occupational safety or disability discrimination laws. Illegal retaliation includes anything that changes the conditions of employment, ranging from giving an employee the cold shoulder to harassment to termination. Many companies have complaint procedures specified in their company handbooks and may require that the employee follow a certain channel of communication in reporting unsafe conditions and/or retaliation for complaining of unsafe conditions. If you know someone in this situation, advise them to follow these procedures, document their actions in writing, and above all consult an experienced attorney to guide them through this complicated process.
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