The confidentiality of medical records requirement under the Americans with Disability Act (ADA) is violated when an employer discloses a current or former employee’s medical records in response to a state court subpoena absent the employee’s release or some other exception under the ADA, the Equal Employment Opportunity Commission (EEOC) recently held in Bennett v. U.S. Postal Serv., 2011 WL 244217 (E.E.O.C.), Jan. 11, 2011.

Companies frequently receive requests for information about current and former employees. These requests often come in the form of an attorney’s demand letter or a subpoena and apply to the individual’s medical records. Those receiving such requests typically feel compelled to respond without taking the time to think through issues such as: 

  • what kind of information in contained within the files being requested;
  • what specific statutory or regulatory protections apply for some or all of the information being requested (see below);
  • is a response appropriate without an authorization of the individual or giving an individual an opportunity to object;
  • is a court order needed for some or all of the information being requested; and
  • what safeguards should be taken to ensure the disclosure is secure.

As we have reported previously, failing to think through these issues can be a costly trap for the unwary.

EEOC Analysis

In the Bennett decision cited above, the EEOC sets out the basic ADA requirements concerning confidentiality of employee medical records:

Title I of the [ADA] requires that all information obtained regarding the medical condition or history of an applicant or employee must be maintained on separate forms and in separate files and must be treated as confidential medical records. [Citations omitted]. These requirements also extend to medical information that an
individual voluntarily discloses to an employer. [Citations omitted]. The confidentiality obligation imposed on an employer by the ADA remains regardless of whether an applicant is eventually hired or the employment relationship ends. [Citations omitted]. These requirements apply to confidential medical information from any applicant or employee and are not limited to individuals with disabilities. [Citations omitted].

The decision goes on to explain the general exceptions to these requirements:

  • supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
  • first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; 
  • government officials investigating compliance with this part shall be provided relevant information on request;
  • employers may disclose medical information to state workers’ compensation offices, state second injury funds, workers’ compensation insurance carriers, and to health care professionals when seeking advice in making reasonable accommodation determinations; and
  • employers may use medical information for insurance purposes.

The EEOC found that the Postal Service’s disclosure of Mr. Bennett’s medical records in response to the subpoena issued by the Galveston County 405th District Court did not fall into one of these exceptions. The EEOC held that while the ADA allows an employer to comply with the requirements of another federal statute or rule, even if in conflict with the ADA, "it is not a valid defense to argue that the [Postal Service’s] actions were required by state law," (emphasis added) unless one of the ADA exceptions applied.  The Commission also noted the subpoena in this case was signed and issued by the Deputy Clerk, and did not qualify as an “order” for purposes of the Privacy Act of 1974, on which the Agency attempted to rely to permit the disclosure.

Because of this violation of the ADA, the EEOC ordered the Postal Service (i) to start an investigation into compensatory and other damages that may be due to Mr. Bennett,  (ii) to conduct training concerning the ADA’s confidentiality requirements, and (iii) to prepare a report regarding corrective action. The Postal Service also may be responsible for Mr. Bennett’s attorneys’ fees, among other things.

Is the ADA the only concern?

In short, no, the ADA is only one protection for medical and other personal information that could trigger exposure for a company that improperly discloses such information. There is an increasing array of federal and state laws that need to be examined, as appropriate, before responding to a request:

  • GINA: Regulations issued under Title II (GINA’s employment provisions) provide that  employers that possess genetic information must maintain the information in confidence and may not disclose that information except in limited circumstances, such as (i) at the request of the employee, (ii) in response to a court order, (iii) to respond to a request from a government official investigating GINA compliance, or (iv) in support of an employee’s FMLA certification. The preamble to the GINA regulations provides that the court order exception "does not allow disclosures in other circumstances during litigation, such as in response to discovery requests or subpoenas that are not governed by an order specifying that genetic information must be disclosed. Thus, a covered entity’s refusal to provide genetic information in response to a discovery order, subpoena, or court order that does not specify that genetic information must be disclosed is consistent with the requirements of GINA." Additionally, the individual whose genetic information is disclosed may need to be notified. 
  • HIPAA: The privacy regulations under HIPAA likewise generally prohibit the disclosure of "protected health information" except in limited circumstances. HIPAA regulation 45 CFR 164.512(e), among other exceptions to the general rule, provides an exception for disclosures in connection with administrative and judicial proceedings. But one of the first questions to ask is whether the information being sought is "protected health information." Very often, employee medical information in a personnel or medical file is not, in the hands of the employer, protected health information subject to HIPAA. 
  • 42 USC Part 2: Federal law provides very stringent protection for records relating to substance abuse treatment at certain federally funded facilities. 
  • State law: Many states have laws protecting certain classes of medical records from disclosure without taking appropriate safeguards to address confidentiality. This includes application of the physician-patient privilege, as well as statutes and regulations dealing with specific types of information, such as mental health records. 

Because of these issues, businesses should develop a clear policy and procedure to direct employees on how to respond when they receive these requests. 

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.