By now, everyone has heard of and works within the required guidelines of the Health Insurance Portability and Accountability Act (“HIPAA”) when dealing with medical privacy requirements. Many small businesses may thing that they aren’t impacted by issues dealing with medical privacy requirements, but think again.
While HIPAA may not impact you directly, the Americans with Disabilities Act (“ADA) probably does. Under the auspices of the ADA, strict confidentiality requirements on medical information obtained from applicants and employees, regardless of whether they have disabilities or not, must be adhered to at all times. Under ADA guidelines, such information must be collected on separate forms and maintained in confidential medical files. A recent case making its way through the court systems illustrates just how careful employers must be in handling employee information.
An employer decided to paint the walls of its office. One employee experienced breathing problems and informed her manager that the paint fumes were aggravating her asthma. Following company policy, the company’s safety inspector completed an investigation and issued an Incident Report. In that report, which was distributed to several of the employee’s coworkers, the company disclosed the employee’s asthmatic condition. She had not authorized the disclosure.
For whatever reasons, the employee was terminated a month later. She sued under the ADA and under laws. Her ADA claim alleged disability discrimination, retaliation and disclosure of confidential information. The court dismissed all claims except the claim for disclosure of confidential medical information.
The company lost when the court ruled that all employee medical information must be kept confidential unless the employee approves otherwise. (Khalil v. Rohm & Haas Co., U.S. District Court, E.D. Penna, No. 05-cv-03396, 11/17/05).
There are only a few exceptions to medical confidentiality that employers should be aware of:
1. Supervisors/managers may be informed regarding necessary medical information in order to restrict or accommodate an employee’s disabilities.
2. First aid and safety personnel may be informed in case the employee might require emergency treatment for a disability.
3. Government officials investigating employer compliance with the ADA are entitled to request the relevant information.
Bottom line: ALWAYS get an employee’s permission before sharing or disclosing their medical information with anyone.