Can My Employer Release Personal Medical Information?
Generally, employers are required to keep medical records and information about their employees confidential. This type of information typically should not be shared in the workplace or with third parties absent some legitimate business purpose. There are various legal protections that guard employee’s private information; two of the most important are HIPAA and the ADA, which are both federal laws. Read on to learn more about how the law protects employees’ privacy rights.
The Health Insurance Portability and Accountability Act
The Health Insurance Portability and Accountability Act, or HIPPA, is a federal law that establishes national standards in order to protect medical information from being disclosed to others without a person’s consent or knowledge. Under the Act’s Privacy Rule, medical files containing any individually identifiable information are protected. Additionally, these files cannot be shared with your employer without your written consent.
The Privacy Rule applies to medical records in the possession of healthcare workers, health plans, and health clearinghouses. While it controls how and when a healthcare provider or health plan discloses confidential medical information to an employer, including managers and supervisors, it does not protect those employment records that contain health-related information.
This means that an employer is not prohibited from asking for doctor’s notes or health-related information when such information is needed for administrative purposes such as sick leave, health insurance, and wellness programs, and workers’ compensation. Furthermore, workplace healthcare records relating to employee benefits like life and disability insurance are not covered under HIPAA.
The Americans with Disabilities Act
The Americans with Disabilities Act, commonly referred to as the “ADA,” protects people with disabilities from discrimination in certain settings. For example, the Act prohibits employers from asking applicants if they have a disability or the nature of an obvious disability. It also prohibits an employer from hiring a person simply because of a disability if that person can perform the essential functions of the job with reasonable accommodation.
When it comes to medical examinations, an employee cannot be required to submit to one prior to receiving a job offer. Once an employee has been offered a job, but before the employee begins working, an employer can require medical examinations only if all entering employees in the same job category must submit to examinations and if the examination is job-related and necessary to the needs of the business. Once an employee has begun working, an employer cannot require a medical examination or ask questions related to a person’s disability absent a job-related reason that is necessary to conduct business.
Any results from medical examinations must be kept confidential, and those files must be maintained separately from other personnel files. However, confidential information may be disclosed by an employer in the following situations:
- To a manager or supervisor when the information is needed to provide reasonable accommodations once the employee has stated that he or she is disabled and functional limitations as a result of a disability.
- To safety personnel if the employee would require medical assistance because of a disability.
- To those who are investigating compliance with the ADA.
- To those who are investigating and working on workers’ compensation claims or for health insurance purposes.
How Are My Protections Changed in a Pandemic World?
In today’s world, while communities are battling Covid-19 and experiencing rising infection rates, HIPPA and the ADA continue to apply. However, HIPPA and the ADA will not be construed to prevent employers from following ADA guidance. Notably, these exceptions generally won’t apply to those employees who are remotely working. According to the EEOC website, some of the changes include:
- Employers may ask employees if they are experiencing symptoms of Covid-19, but the employer must maintain the confidentiality of any information regarding the employee’s illness as a medical record in compliance with the ADA.
- While taking employees’ temperature would generally be considered a medical examination, it is currently a symptom of Covid-19 as stated by the CDC. Because officials have issued precautions to prevent the easy spreading of the virus, employers may take the temperatures of employees.
- A Covid-19 screening or test would also be considered a medical examination that must be job-related and necessary to conduct business. However, a person with Covid-19 is a direct threat to the health of other employees. Because of this, employers are permitted to conduct Covid-19 screenings to determine if the employees who are entering the workplace are infected. The idea is that testing for the virus that is consistent with guidelines provided by the CDC meets the ADA’s “business necessity” standard.
- Employers are not permitted to require antibody tests from employees. Because the CDC has stated that these tests cannot be used to make decisions about employees entering the workplace, this is considered a medical exam that is not job-related or consistent with business necessity.
- The employer can have all employees who physically enter the workplace if they have the virus, if they show symptoms, and if they have been tested.
- When an employer chooses a single employee to ask questions that are pandemic-related or submit a Covid-19 test, the employer must have a reasonable belief that a person might have the virus based on objective evidence.
- While an employer may as if you’ve come into contact with someone who has been diagnosed with Covid-19 or someone who is showing symptoms, the employer is not permitted to ask if you have a family member with Covid-19 or showing symptoms.
Have Your Rights as an Employee Been Violated by Your Employer?
The ADA and HIPAA provide employers with protections regarding medical information and prevent its unauthorized dissemination. If you think your rights have been violated, call the experienced attorneys at Noble Law. We provide consultations in New York and North Carolina, remotely via videoconferencing during the pandemic. Call the Charlotte office at 704.626.6648, the Triangle office at 919.251.6008, or the New York office at 212.662.6500, or visit our website to schedule your consultation.