I came across an interesting case recently which highlighted the importance of taking precautions to keep employee medical information confidential. The case, which is a few years old now, involved an employee who had suffered an injury at work and needed to take time off to recover. One of the employee’s coworkers processed his worker’s compensation claim and monitored his treatment.
The coworker then posted on Facebook, “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.” The employee, George Shoun, then sued his employer for violating the Americans with Disabilities Act (ADA) by disclosing his health information. The court refused to throw out the case, finding that the employee had stated a proper claim for a violation of the ADA.
The basis of the employee’s claim was section 102 of the ADA, which imposes on employers strict rules for handling employee health information. Employee health records submitted to an employer pursuant to a claim for an accommodation under the ADA must be kept confidential and separate from other personnel records. Ideally, these records would be kept in a separate file cabinet that only a limited number of employees would have access to. These records may only be revealed to safety and first aid workers to treat the employee, or to the employer’s supervisor in order to determine what reasonable accommodation can be given to the employee. The employee claimed that his employer failed to abide by section 102 by allowing other employees to see his medical records.
The Health Insurance Portability and Accountability Act (HIPAA) also requires certain organizations to keep health insurance information confidential. HIPAA requires healthcare providers, health insurance companies, and government healthcare programs to keep participant health insurance information confidential. Failure to do so, could leave these groups open to a lawsuit.
The Genetic Information Nondiscrimination Act (GINA) also requires employers to keep employee medical records confidential. GINA prohibits employers from requesting or requiring that employees provide genetic information. If they happen to receive this information inadvertently, then they also must keep it in a separate file.
Feel free to contact me if you would like advice on maintaining employee records in compliance with the law.