Employment Law Attorneys Best Answers: Is it a HIPAA violation for my employer to release my private medical information? What should I do if my boss told other my coworkers that I have COVID? How does my job have to protect my medical information?
The Health Insurance Portability and Accountability Act of 1996, which is more commonly referred to as just HIPAA (and often misspelled as HIPPA), protect individuals’ medical records and other individually identifiable health information (collectively defined as “protected health information”). However, HIPAA laws apply only healthcare providers (such as doctors, hospitals, emergency rooms, etc.), health plans, and health care clearinghouses. HIPAA does not protect employee’s medical information in the employment setting or create any obligation on employers. This does not mean that employers can share medical information willy-nilly. Quite the opposite.
Our employment law attorneys have blogged about various rights afforded to disabled workers under the Americans with Disabilities Act (“ADA”). Specifically, the ADA makes it unlawful for your boss or supervisor to discriminate against employees with a qualifying disability in favor of non-disabled employees. (See What Can I Do If My Boss Discriminates Against Me Because Of My Disability? I Need The Top Disability Discrimination Lawyers In Ohio!). For example, the owner of the company that you work at cannot promote non-disable employees over more qualified disabled employees. The ADA makes it illegal to harass disabled employees. (What Is A Hostile Work Environment?). Under the ADA, employers cannot fire disabled employees or those employees who report disability discrimination or harassment. (See Can My Boss Fire Me Because of My Medical Condition? I Need The Best Disability Employment Discrimination Attorney In Ohio!). And should a disabled need help to do the job, the employer must engage in the interactive process to determine if a reasonable accommodation can be made that does not cause the employer an undue hardship. (See What Should Employees Know About Reasonable Accommodations?; What Is The Interactive Process For Disabled Employees?).
One of the less known aspects of the ADA, which protects all employees, is provisions that address the employer’s responsibilities regarding the handling of medical documentation. With a few unusual exceptions, the ADA requires employers to keep all medical information they learn about employees and applicants confidential. Medical information is defined by the ADA to include diagnoses, treatments, and all requested and given disability work accommodations. This means all medical information, even records regarding temperature checks done as part of COVID protocols.
The ADA confidentiality requirement expressly mandates such medical information be stored separately from regular personnel files in order to limit who has access. Similarly, medical documentation and information cannot be stored electronically in a place where others would have access, i.e., on a shared network or drive.
Employers cannot identify employees that have COVID (except to a public health agency as required). Now, an employer can ask the affected employee regarding contact tracing. However, upon getting that list, the employer still cannot reveal who the COVID positive employee is. On this point, the Equal Employment Opportunity Commission (“EEOC”) recommends “using a generic descriptor, such as telling employees that ‘someone at this location’ or ‘someone on the fourth floor’ has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. For small employers, coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity.” (See Top Employment Law Attorney: Do Not File With The EEOC Without Doing This First; File With The EEOC Or Get A Lawyer? Call The Right Attorney; Should I Get A Lawyer To Help Me File An EEOC Charge?; and Should I File With The EEOC On My Own? Call The Right Attorney). Likewise, if an employee must work from home to isolate as a result of a positive COVID test or having coronavirus symptoms, the company cannot tell other employees why that employee is working remotely.
Additionally, releasing an employee’s medical information in retaliation to that attorney opposing unlawful discrimination or harassment under Title VII of the Civil Rights Act of 1964 that will give rise to a very good claim for damages as well.
This employment law website is an advertisement. The ADA materials available at the top of this Coronavirus and medical information page and at this employee’s attorney website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I get my boss to stop sharing my medical condition”, “What should I do if my supervisor told my coworkers private medical information that I got cancer,” “My company told everyone that I was out with COVID” or “I want to sue my job for talking about my disability”, it would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.