Does your HR staff know the limits on what they could tell prospective employers about former employees?
In this case, the US Equal Employment Opportunity Commission (EEOC) alleged that 7-Eleven of Hawaii failed to keep a former employee’s medical information confidential by disclosing the information to a prospective employer, in violation of the ADA, which caused the prospective employer to rescind a job offer. The EEOC filed suit in federal district court ( EEOC v 7-Eleven of Hawaii, Inc, DHaw, No CV 07-00478-SPK-BMK) and, after the District Court ruled in 7-Eleven’s favor, the EEOC appealed the decision in August 2008 to the US Court of Appeals for the Ninth Circuit.
However, on August 2, the EEOC announced a settlement under which 7-Eleven of Hawaii will:
- pay $10,000,
- provide annual training to its human resources personnel and managers in equal employment opportunity, with an emphasis the ADA requirements concerning confidentiality, and
- for a period of two years, 7-Eleven will also be required to report annually to the EEOC regarding the company’s policies and proposed training programs with respect to disability discrimination, medical disclosure, non-retaliation, and reasonable accommodation.
In comments about the case, EEOC representatives made clear that the ADA confidentiality requirements apply to applicants, current employees and former employees. Earlier in the year, we wrote about a recent EEOC senior staff attorney's informal letter concerning the duties of federal employees and contractors relating to medical confidentiality. It is unclear whether these actions by the EEOC suggests a greater emphasis on enforcement of medical records confidentiality under the ADA. Regardless, employers should be taking preventive steps to comply with these requirements. Some steps include:
- Creating a culture of confidentiality concerning medical records, whether those records are subject to ADA, HIPAA or some other law.
- Reminding employees that medical information is confidential and access is on a need-to-know basis.
- Reviewing and revising administrative, physical, and technical safeguards as necessary and appropriate to safeguard medical information, such as requiring employees to keep their desks clear of sensitive information and locking doors and file cabinets.