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Off the Records

When it comes to what's in your employees' medical records, keep your questions to yourself. The less you know, the better.

When was the last time someone told you something was "none of your business"? That's the law's position on employees' medical conditions. If you ask for details-or disclose them-you may expose yourself to lawsuits under the Americans With Disabilities Act (ADA) or common-law invasion-of-privacy claims.

Consider a recent case at Minnesota Power & Light. A worker injured her back in a fall while moonlighting at a restaurant, causing a 10.5 percent disability. When the employee later sought a transfer to another department, the power company had her evaluated to see if she could meet the physical demands of the new position. When the clinic determined the woman could only lift 20 to 35 pounds, the supervisor of the new department, without getting permission from the woman, told subordinates of her back injury, lifting restrictions, and the fact that a former supervisor suspected cognitive deficiencies (which tests had not confirmed). The woman's co-workers treated her patronizingly. Worse, when the supervisor learned that the woman had applied for a letter-carrier job, he informed the U.S. Postal Service about her back injury and lifting restrictions, which led to her not being hired. All this led to a bout of depression, psychotherapy and medication.

The woman charged violation of the ADA and state discrimination laws. The case was dismissed in a lower court, but the 8th U.S. Circuit Court of Appeals ruled that the employer had illegally disclosed confidential medical information, noting that an applicant or employee need not actually be disabled to be entitled to the ADA's protection of confidentiality.

Shush!

Under normal circumstances, employers don't and shouldn't have access to employees' medical records. Special circumstances, however, allow you to request documentation if an employee asks for an ADA accommodation or for leave under the Family and Medical Leave Act, according to Miami employment attorney Anne Marie Estevez, a partner with Morgan Lewis & Bockius LLP. You can also require a medical exam after making a job offer, if the job requires certain physical abilities. However, those records should not be kept in employees' personnel files.

"If you have the luxury of a medical department, keep it as a filter between the employee and you," says attorney Glenn Dowd, chair of the employment law department at Day Berry & Howard in Hartford, Connecticut. Otherwise, maintain separate medical files so it doesn't appear you're making employment decisions based on employees' medical conditions. "The best 'get out of jail free' card is, "I had no idea he had that condition,'" Dowd says.

In job interviews, the ADA prohibits even asking about disabilities. In a recently decided case, a man applied for a job at a Wal-Mart store in New Mexico. The personnel manager asked, "What current or past medical problems might limit your ability to do a job?" The applicant revealed that one of his arms had been amputated. When the personnel manager decided not to offer him the job, the applicant filed a claim with the Equal Employment Opportunity Commission, which sued Wal-Mart and won punitive damages of $150,000.

Gaining Access

There is one circumstance under which an employer has a right to examine an employee's medical records: when the employee has made it an issue in a workers' compensation claim or a lawsuit. Indeed, courts have ruled that the employer can even disclose medical information about other employees to compare how the company treated others with the same condition. "Once litigation has ensued, the employer has free rein to look at any relevant records," says Estevez. "The rules completely change."

Good employers are compassionate when employees have medical problems. But beware of prying into matters the employee-and the law-considers none of your business.


Steven C. Bahls, dean of Capital University Law School in Columbus, Ohio, teaches entrepreneurship law. Freelance writer Jane Easter Bahls specializes in business and legal topics.

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This article was originally published in the November 2001 print edition of Entrepreneur with the headline: Off the Records.

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