Friday, February 22, 2008

Article highlights the importance of medical confidentiality by employers

An article in Thursday's New York Times asks the question, "I'm Ill, but Who Really Needs to Know?"

One of the first decisions you make in the emotional hours after a scary diagnosis is whether to tell others. Most of us share the news with our loved ones, but what of the circles beyond, particularly those at work? Your boss?

If an employee chooses to disclose a medical condition to an employer, it should go without saying that it is illegal to take any adverse action against that employee because of the illness. Separate and apart from the obvious, employers have clearly defined responsibilities with the handling of employee medical information. The EEOC sets out an employer's specific responsibilities under the ADA when an employee discloses medical information:

Basic rule: With limited exceptions, you must keep confidential any medical information you learn about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional.

Do not place medical information in regular personnel files. Rather, keep medical information in a separate medical file that is accessible only to designated officials. Medical information stored electronically must be similarly protected (e.g., by storing it on a separate database).

The ADA recognizes that employers may sometimes have to disclose medical information about applicants or employees. Therefore, the law contains certain exceptions to the general rule requiring confidentiality. Information that is otherwise confidential under the ADA may be disclosed:

  • to supervisors and managers where they need medical information in order to provide a reasonable accommodation or to meet an employee's work restrictions;
  • to first aid and safety personnel if an employee would need emergency treatment or require some other assistance (such as help during an emergency evacuation) because of a medical condition;
  • to individuals investigating compliance with the ADA and with similar state and local laws; and
  • pursuant to workers' compensation laws (e.g., to a state workers' compensation office in order to evaluate a claim) or for insurance purposes.

HIPAA also imposes certain privacy and confidentiality obligations on employers' handling of employee medical information.

It is best to advise employees in an employee handbook or policy statement about the handling of their medical information. In the handbooks I've written recently I've been incorporating a policy statement on "serious illnesses." That policy lets employees know that their medical information is confidential, limited to managers and supervisors on a need to know basis, kept in a separate file, and that anyone who makes unauthorized disclosure of employee medical information will be subject to discipline up to an including termination. This policy should be dovetailed with other policies on reasonable accommodations for disabilities.