Section 21.8 Workers' Compensation Leave - December 14, 1992
TO: State Departments and Agencies
The purpose of this bulletin is to clarify the responsibilities of agency staff in providing State Insurance Fund investigators access to personnel records of injured employees when an investigation of an employee's workers' compensation claim is being conducted.
New York State employees who have job-related disabilities are eligible for benefits provided by the Workers' Compensation Law. The State Insurance Fund (SIF), serving as New York State's administrator, is responsible for determining the source, extent and duration of the disability; and based on that information, ensuring that employees receive the correct Workers' Compensation Law benefits.
Determination of the extent of disability and entitlement to benefits under the Workers' Compensation Law can require an investigation by the State Insurance Fund. When this happens, authorization for release of information to Fund representatives derives from the following:
Questions have been raised concerning an agency's ability to release records to the SIF in light of an employee's right to privacy under both the Personal Privacy Protection Act and the Americans with Disabilities Act (ADA). We are advised that the personnel records of an employee who has filed a claim for workers' compensation disability benefits are releasable to the State Insurance Fund pursuant to Section 96.1 (d) of the Public Officer's Law. In addition, the Technical Assistance Manual on the ADA published by the Equal Employment Opportunity Commission states:
The SIF presents records to the Workers' Compensation Board on behalf of the agency. In summary, these laws allow the release of personnel information to SIF representatives in connection with their responsibilities to provide benefits pursuant to the Workers' Compensation Law.
When SIF determines an investigation is warranted, the investigators, as representatives of New York State management, must have access to all information pertinent to the job-related injury, including medical documentation, witness statements, accident reports, and any other information related to the incident. This might include reference to a pre-existing injury or condition (job-related or not) that the investigator believes is relevant to the case under review. Regardless of where the information is filed, the investigator or agent should be allowed access under the following conditions:
Usually the SIF will send staff investigators to State agencies, but occasionally they will use private investigators. In either case, the agency should verify the credentials of the investigator and, if necessary, contact the appropriate State Insurance Fund District Office for confirmation if there is a question; for example, when advance notice has not been received.
It is recommended that agencies establish procedures for review of records by SIF investigators and advise the SIF of the procedures. A routine that includes whom to contact, the location of records, identification requirements, etc., should be included so that the investigation proceeds smoothly, which minimizes both the agency and SIF staff time involved.
Please direct questions concerning the accessibility of information in employee personal history folders for workers' compensation claims investigations to the Employee Relations Section of this Department at (518) 457-5167.