Labor Logic

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John D. Finerty, Jr.

The United States Equal Employment Opportunity Commission recently issued an informal letter opinion on the topic of employees’ right to medical records privacy under the Americans with Disabilities Act. The specific question posed to the EEOC was whether the ADA requires employers to notify other employees that one of their co-workers has a communicable disease. The specific example cited Hepatitis C. The agency’s response provides some interesting insights into medical records privacy.

The EEOC’s Letter Ruling

Federal government agencies will occasionally issue informal opinions on a given set of facts to assist employers and employees in determining their rights under federal law. The EEOC issued an informal letter dated June 17, 2004 in response to an employer’s question about the ADA. The EEOC confirmed the employer’s specific question as the following: "whether the Americans with Disabilities Act (ADA) required that you [the employer] notify your employees that a co-worker has Hepatitis C. Alternatively, you inquired whether it would be a violation of the ADA if your firm disclosed to its employees that a co-worker has Hepatitis C." The EEOC responded with a nonbinding informal letter.

The answer to the employer’s question was that the ADA contains no provision requiring employers to notify co-employees that a co-worker has a disability. The agency went on to remind the employer of the following: "To the contrary, [the ADA] prohibits employers from disclosing medical information about applicants and employees."

It is important to note that, although the agency’s answer denied any obligation to inform co-workers of a disability, the medical information confidentiality requirements of the ADA cover all employee and applicant medical information. The confidentiality provisions are not limited to only medical information that would disclose a disability. The agency noted two exceptions to the ADA’s medical information confidentiality provisions.

First, an employer may share confidential medical information with others within the company, such as a supervisor, who may be told about a disability if there is a need to provide a reasonable accommodation to the employee. Second, the agency noted that first aid or safety personnel may be given medical information if an employee’s disability might require emergency treatment. As a precautionary matter, however, employers should disseminate employee medical information only to those within the company who need to know the information and, then, only with the understanding that the medical information is confidential and will not be shared with anyone else.

For more information on the ADA’s medical records confidentiality provisions, or exceptions, the EEOC’s regulations are published at 29 CFR §1630.14.

Disclosure May Create Liability

Employers that disclose employee confidential medical information may face claims under the ADA or state privacy laws. As noted above, the ADA prohibits disclosing medical information about applicants or employees. In such a case, an applicant or employee may file a charge of discrimination with the U.S. Equal Employment Opportunity Commission. After the agency has an opportunity to investigate, the employee would then have a private right to action in federal court.

State privacy laws may also create a claim for relief. Specifically, Wis. Stats. § 895.50 creates a privacy right and allows for both legal and equitable remedies for an "invasion of privacy" plus reasonable attorney fees. See, Wis. Stats. § 895.50(1)(a)-(c). The statute provides four possible claims under the definition of "invasion of privacy."

First, a trespass type of claim for invading another’s privacy in a highly offensive manner; second, using another’s name or likeness, for advertising or trade purposes, without consent; third, publicly disclosing the "private life of another" unless there was a legitimate public interest involved; and fourth, violating § 942.09 concerning representation depicting nudity. See, Wis. Stats. § 895.50(2)(a)-(d). The unjustified disclosure of medical records, beyond those within the company who have a need to know such information, may constitute a violation of giving publicity to the "private life of another."

Precautions

There are a few steps employers can take to guard against unlawful disclosure of medical information. First and foremost is to identify within the company the individuals who have a need to know employee medical information and then ensure only those employees have access to those files. Human resources professionals, safety directors or compliance officers, for example, may be those who need access to employee medical records throughout the company.

In addition, employees should be provided advance notice in the event medical information is given to an immediate supervisor or someone beyond the normal "need to know" list. Notifying the employee in this manner would usually be done any way as both the employer and employee have a legal obligation to engage in a meaningful discussion on an employee’s abilities when attempting to accommodate a disability. Last, employees should sign a release in the event it becomes necessary to release medical information outside of the company.

More information on these issues is available on the U.S. Equal Employment Opportunity Commission’s Web site, www.eeoc.gov/types/ada.html. For more information on the ADA, contact John D. Finerty, Jr. at Michael Best & Friedrich at (414) 225-8269 or on the internet at [email protected].