E. Medical Investigations

Employers routinely obtain medical information concerning their employees under many different circumstances, including when they collect health information for a group insurance plan, when an employee requests time off for a medical leave, and as part of a substance abuse assistance program. The law now recognizes that a duty of confidentiality can arise to protect this information and avoid dissemination to non-essential third parties. In addition, under emerging statutory state law and case decisions, employers who request medical information may be liable for the tort of intrusion and for the tort of public disclosure of private data. Some states have enacted legislation to limit an employer's disclosure of medical information in personnel files, and several courts have recognized a claim for negligent maintenance of personnel files when files containing inaccurate medical information are made available to third parties. For example, Connecticut has enacted a statute requiring employers to maintain medical records separately from personnel files and permitting employees to review all medical and insurance information in their individual files.

In some states, employers are prohibited from using or disclosing employee medical information unless disclosure is compelled by law or the information is relevant to a lawsuit between the employer or employee, or is necessary to administer an employee benefit plan. The consequence of one case in Massachusetts indicates that employers in that state are even prevented from obtaining employee medical information directly from insurance providers without the employee's consent. Even though the information sought may be of significance to the employer, the employer may not be entitled to it when a physician-patient relationship exists, unless the information poses serious danger to the employer.

TIP: A series of state cases have decided, both pro and con, employees' invasion of privacy claims brought when company physicians disclose confidential medical information to the employer. Usually, if some of the information was previously contained in the employment records, and the issue presented was of legitimate concern to the employer, a court may rule that no breach of the confidential doctor-patient privilege took place if the information was conveyed for a valid purpose. However, since the outcome of each case depends on the particular facts, never make any decisions in this area without seeking advice from counsel.

It is best to carefully evaluate your company's need for medical information before requesting such data from an in-house physician, insurance company or other health provider and take steps to reduce the risk that such information will be disclosed to the employee's friends, family members and co-workers.

If employees ask to view such information, a personnel depart- ment representative should be present when the request is granted. Employees should not be permitted to remove or alter their files in any way and no photocopies should be given; if copies are requested, the employee should be instructed to take notes instead.