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October 4, 2011. Employment News Number 19
Save Money and Time: Protect Employee Health Records
By and , Esquires
KingSpry Group
The Obama administration has urged greater use of electronic media records to make health care more efficient and affordable. While it has been reported that many employees are in favor of electronic medical records for the ease of accessibility, easily accessible medical information presents concerns for employers who are dealing with the rise of discrimination claims and data breaches. The following article will provide you with guidance for handling employee health information.
Because easily accessible medical information could lead to legal liability, management should be aware of the disclosure restrictions of two laws: the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
ADA: There is Such a Thing as “Knowing Too Much”
The ADA imposes limitations on employers’ acquisition of disability-related information. The breadth of these limitations depend upon whether a job offer has been extended and/or the employee has been hired. Before a job offer is extended, employers must avoid asking disability-related questions and may not require medical examinations of job applicants. For instance, employers may not ask applicants whether they have disabilities that would interfere with their ability to perform the job.
After an offer is extended but before an employee begins work, an employer may ask questions related to disability or require medical examinations, provided that all prospective employees are treated the same.
However, as the employer, you may not withdraw a job offer because of your discovery of an applicant’s disability. In fact, under the amended version of the ADA, you may not withdraw a job offer based upon an impairment, even if it would not otherwise be considered a disability. This is because the law assumes that you are withdrawing the offer because the individual is “regarded as disabled,” and believing that an impairment renders an individual disabled is considered a form of disability discrimination under the ADA. Therefore, it is imperative that employers approach post-offer, pre-employment medical inquiries with extreme caution.
Once an individual is hired, employers may only obtain medical information that is job related and consistent with business necessity. In general, business necessity includes the employer’s reasonable belief that an employee may not be able to perform the job or would pose a direct threat to the health of safety of others. Also, business necessity could encompass the qualification of individuals for certain accommodations and/or medical leave.
It is important to remember that the ADA generally prevents employers from taking any negative employment action due to disability. Also, employers should remember that the ADA Amendments Act has broadened the definition of “disability.” Therefore, you are strongly advised to limit the scope of any request for medical records to avoid obtaining more information than necessary. If nothing else, seek guidance from an employment law attorney before requesting any medical records or information.
GINA: Guard The Family Tree
Generally, GINA prohibits employers from requesting, requiring, or purchasing genetic information about applicants and/or employees during any stage of employment. This includes information about family medical history, an individual’s genetic tests, or genetic tests of family members. It is important to note that accessing medical records is considered a request for genetic information if the medical records contain any family medical history.
As noted above, in contrast to the ADA, GINA does not permit the acquisition of genetic information at any stage of employment. While there are exceptions to this proscription, they are limited and very rarely applicable. Therefore, prior to obtaining any employee medical records, the employee should sign a release including warning language that the acquisition of any genetic information in response to the request for medical records will be considered inadvertent.
About Medical Records... “Mum’s The Word”
Any information obtained by an employer about the medical condition or medical history of an applicant and/or employee must be collected on separate forms, kept in separate medical files, and treated as confidential. In the rare circumstances where the employer may lawfully access genetic information, all such genetic information also must be stored separately and kept confidential.
Medical and lawfully obtained genetic information may be stored electronically. However, particularly because of the increased accessibility to electronic information both within and outside of the organization, employers must take particular care to ensure that electronic information is kept confidential and only disclosed to the extent permitted by the ADA and GINA.
On September 23, 2009, new regulations went into effect pursuant to the Health Insurance Portability and Accountability Act (HIPAA) requiring all health care providers to notify patients of the unauthorized acquisition, access, use or disclosure of unsecured patient health information as a result of a digital information breach. However, there are no laws currently in effect that specifically require employers to notify employees of unauthorized access of their digital health records.
While GINA and the ADA are silent about data encryption or other security safeguards for electronic records, employers are strongly advised to secure employee health information stored electronically to avoid violations of the ADA, GINA, and possible negligence suits by employees whose medical information was not properly safeguarded.
Bottom Line for Employers
The best advice is to completely avoid obtaining employees’ medical information. Alternatively, treat all employee health information delicately. Only obtain information that is truly necessary for the operation of your business and make sure that employees sign releases prior to obtaining medical information to protect you from the accidental disclosure of medical or genetic information. When medical or genetic information is in your possession, keep it separate from the employee’s general employment file. With very limited exceptions, it is critical to not consider any medical information when taking any negative employment actions such as discipline, demotions, or terminations.
When in doubt about handling employee medical or genetic information, it is important to contact an attorney as early as possible to avoid increased liability. If you have any questions regarding digital data breaches, please contact your legal counsel or one of the .
* KingSpry Employment News is meant to be informational and does not constitute legal advice.
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