- For Attorneys
The FMLA and the ADA are the main federal statutes regarding the confidentiality of employment-related employee medical records. Both the ADA and the FMLA provide for special confidentiality requirements in the maintenance of employee medical records, including: (1) the separation of medical information into separate files; and (2) restricted access to such separate files.
With limited exceptions, an employer must keep confidential any medical information it learns about an applicant or employee. An employer, however, may disclose that an employee has alcoholism under the following circumstances:
-to supervisors and managers in order to provide a reasonable accommodation or to meet an employee's work restrictions;
-to first aid and safety personnel if an employee would need emergency treatment or require some other assistance
-to individuals investigating compliance with the ADA and similar state and local laws; and,
where needed for workers' compensation or insurance purposes (for example, to process a claim).
An employer may not disclose that an employee has alcoholism. However, an employer certainly may respond to a question about why a co-worker is receiving what is perceived as "different" or "special" treatment by emphasizing that it tries to assist any employee who experiences difficulties in the workplace. The employer also may find it helpful to point out that many of the workplace issues encountered by employees are personal and, that in these circumstances, it is the employer's policy to respect employee privacy. An employer may be able to make this point effectively by reassuring the employee asking the question that her privacy similarly would be respected if she ever had to ask the employer for some kind of workplace change for personal reasons.
In the event a co-worker, or other individual, inquires about an employee's disability and/or accommodation, an employer is prohibited from disclosing any information concerning an individual's disability. The employer must also not disclose to coworkers and/or other individuals that a particular employee is being provided a reasonable accommodation. Rather, an
employer should respond that it is acting in compliance with federal law, or for a legitimate business reason.