Vigilant Blog

News, trends and analysis in employment law, HR, safety & workers' comp

Aug 01, 2011

ADA and GINA require separation of employee medical records


Maintaining personal and occupational health information in one place, including an electronic medical record, may violate the federal Americans with Disabilities Act (ADA) or the federal Genetic Information Nondiscrimination Act (GINA) according to a recent letter from the U.S. Equal Employment Opportunity Commission (EEOC). The question posed to the EEOC was whether maintaining information related to an employees personal health information (e.g. information related to the diagnosis or treatment of a condition, such as may be found with medical certifications for a leave of absence) in the same location as occupational health information (e.g. medical information concerning an employees ability to work or a reasonable accommodation request) would violate the ADA and/or GINA. Both the ADA and GINA require confidential health information to be kept separate from other employee records, so that only individuals who have a business-related reason for knowing the information have access to it. Keeping all medical records in one location could cause a problem if someone has access to the medical file who doesnt have a business-related reason for accessing other information contained in that file.<?xml:namespace prefix = o ns = “urn:schemas-microsoft-com:office:office” /?>

For example, your risk management officer may need to see workers compensation information for purposes of creating a light duty position for an employee, but has no reason to see Family and Medical Leave Act (FMLA) medical certifications unrelated to the workers comp claim. By keeping all medical records in one location, including an electronic file, and then granting unfettered access to someone who is only authorized to see some of the information, you may be violating ADA or GINA. Similarly, you shouldnt be sharing information with anyone unless the employee has specifically consented to that disclosure or the disclosure is permitted by law.


One option may be to keep separate files for different medical information. For instance, your ADA reasonable accommodation file could be separate from your FMLA medical certification file. However, this could mean an explosion in the number of files to retain. Another option may be to establish a password protocol where certain types of files are given different passwords. Or, if you have someone on staff who already has access to the files for job-related reasons (e.g., an HR person who is processing FMLA leave requests, coordinating ADA reasonable accommodation discussions, and handling workers comp claims), that person could act as a gatekeeper. The more you can screen unnecessary people from viewing confidential health information, the less likely that youll violate applicable confidentiality rules. Still have more questions? Contact your Vigilant staff representative.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.