Is your company’s handling of medical information compliant with rules enacted under the Americans with Disabilities Act of 1990 (ADA)?

There are several ways employers may come into possession of medical information. First, regulations administered by the Equal Employment Opportunity Commission (EEOC) provide that an employer may require a medical examination and/or inquiry after making an offer of employment to a job applicant and before the applicant begins his or her duties. The employment offer may be conditioned on the results of the examination and/or inquiry if all entering employees in the same job category are subjected to the same, regardless of disability.

Second, the ADA rules acknowledge that there may be instances when an employer requires a medical examination and/or inquiry of a current employee. These must be job-related and consistent with business necessity. The employer may inquire into the ability of an employee to perform job-related functions.

Finally, an employer may conduct voluntary activities, including medical examinations and medical histories, as part of an employee health program.

In each of these instances the employer’s examinations and inquiries will naturally produce personal medical information. This information must be retained somewhere. The ADA rules speak to how this is done and to limitations on the use of the information.

Retention and Use of Medical Information

All information obtained from medical examinations and/or inquiries must be collected and maintained on separate forms, in separate medical files and must be treated as a confidential medical record. That is, an employer should not place any medical-related information in an employee’s general personnel file. Further, an employer should take steps to ensure the security of medical information, including:

• keeping the information in a separate, locked cabinet apart from the personnel file. If computer files are used, it should be stored on a database separate from personnel files; and
• designating a specific person or persons to have access to the medical file.

The EEOC recognizes certain exceptions to the confidentiality requirement:

1) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations;

2) First aid and safety personnel may be informed, when appropriate, if a disability might require emergency treatment or special procedures;

3) Government officials investigating compliance with the ADA and other Federal and state laws prohibiting discrimination on the basis of disability should be provided relevant information on request.;

4) Relevant information may be provided to state workers’ compensation offices or “second injury” funds, in compliance with state workers’ compensation laws; and

5) Relevant information may be disclosed to insurance companies where the company requires a medical examination to provide health or life insurance to employees.

Employers are well advised to audit their policies and procedures for the retention and use of employee medical information to ensure compliance with EEOC standards. An ounce of prevention now will reduce the risk of a potentila future violation.