If your current or former employer has any medical records or other information relating to your disability, strict rules dictate how those records must be kept and who can have access to them. Your employer may have asked you to take a fitness-for-duty exam before returning to work after you were out on disability or workers' comp. Or a prospective employer may have asked you to take a medical exam; some employers require physicals or other exams before employees start work. Or maybe your employer has a voluntary workplace wellness program that includes taking health histories or exams. Read on to find out the rules employers must follow with regard to your medical records, and whether Social Security can require your employer to hand over your personnel records without your consent.
The confidentiality requirements of the Americans with Disabilities Act (ADA) apply to all disability-related medical information an employer obtained through employment-related examinations or inquiries. This includes, for example, medical exams required to start a new job or return to work after an injury, as well as any medical information an employee voluntarily discloses as part of an employee health program.
The ADA doesn’t apply to all health records, however. The records in question must be related to a disability and must be obtained in the ways described above. However, many employers err on the side of caution by treating any and all medical information as if it were confidential.
Employers must keep protected medical information on separate forms and in separate files from regular personnel records. Protected medical information must be treated as confidential.
The ADA doesn’t specify the precise measures an employer must take to maintain confidentiality. Employers that use file cabinets and paper records often keep medical records in a separate, locked cabinet that is accessible only to those who are entitled to see the records (see below). Employers that use electronic records might encrypt medical records and require a special password to access them. Whatever method the employer chooses must effectively restrict access to the records to only those people who have a legal right to view them.
Under the ADA, it’s not illegal for certain people to access your medical records. After all, if you need a reasonable accommodation, your supervisor may need information about your work restrictions. Or, your company’s onsite first aid or medical team may need to be aware of your condition so they can make sure you are properly cared for in an emergency.
The ADA allows employers to disclose disability-related medical information to:
The Equal Employment Opportunity Commission has also recognized an exception for information provided to state workers' compensation offices or insurance carriers.
As you can see, these exceptions are very limited. The Equal Employment Opportunity Commission has found, for example, that an employer may not release an employee’s medical records even if they are subpoenaed in a lawsuit, unless the employee consents. And a court in Indiana found that an employer could be held liable for violating these rules if one of its employees (in this case, the employee responsible for dealing with workers’ comp claims) posts another employee’s medical information online.
Except for government officials who are specifically examining your employer's ADA compliance, the list of exceptions does not include government agencies. So the law appears to forbid your employer from giving your confidential medical records to any government agency that requests them, including the Social Security Administration. This doesn't mean your records are totally off-limits, however: If you file a claim for Social Security disability benefits, you will likely be asked to sign an authorization form (SSA Form 827) that allows your employer to hand over any records related to your benefits claim.
If your medical records or disability history are revealed without your consent, and none of the exceptions above apply, your employer may have violated the ADA. Your first stop in considering your options should be a lawyer’s office. An experienced lawyer can analyze the facts and explain whether you have a strong case (and, if so, whether it’s worth pursuing, given what you might be awarded by a court if you win). A lawyer can also help you negotiate an out-of-court settlement with your employer.
Strict deadlines apply to discrimination cases. You may have only 180 days to file a discrimination charge with a government fair employment practices agency (this filing is required before you can sue). So, if you are considering taking legal action, it’s best to talk to a lawyer as soon as possible.