The FMLA is a complicated statute, in part because it attempts to balance competing rights. The Act’s primary goal is guaranteeing the rights of employees who need time off to care for serious health conditions. At the same time, Congress did not wish to impose an overly onerous burden on employers who are trying to run a business. The regulations regarding an employee’s FMLA right to privacy is a good example of how the Act strikes this balance – but they also show how striking that balance creates complexity. It is critical that both employees and employers carefully follow the FMLA’s regulations, particularly where the right to privacy to sensitive medical information is concerned.
An employee seeking FMLA leave must first put the employer on fair notice that he or she is seeking medical leave, as well as the expected timing and duration of the leave. 29 C.F.R. 852.302. (This rule is relaxed if the need for leave arises suddenly or unexpectedly). At this step, the employee is not required to disclose the reason for the leave request. The employer may – but is not required to – request certification of the employee’s health condition within 15 days of the initial request for leave. The FMLA certification must be provided by a qualified health care provider, who is usually, but not always, a doctor. The Department of Labor has provided a certification form, although this form is not mandatory. Once the employee completes the certification form, the employer may not request additional information — unless it decides to request a second opinion from another health care provider (which is a complicated process beyond the scope of this article).
As part of the certification process, the employer will almost certainly obtain sensitive medical information regarding the employee. The FMLA right to privacy strictly limits how the employer must treat this information. Federal regulations require that information related to an FMLA leave request must be treated as “confidential medical records” and kept in “separate files/records from the usual personnel files.” This point is important, and bears repeating: employee medical information should never be kept in the employee’s basic personnel file. Instead, the employer must keep a second, parallel file containing any information related to an FMLA request or other employee medical issues. If a supervisor – or anyone else – asks to see a worker’s personnel file, the company should provide the file without the medical information.
In short, the FMLA requires employers to keep medical records and information private. An employer should not tell a supervisors, co-workers, clients, or customers anything about an employee’s medical condition. If the question comes up, “he is on leave” is a sufficient answer. Providing any more information risks violating the FMLA right to privacy. In one 2010 case, a plaintiff alleged that the employer disclosed his medical condition to co-workers, who harassed him about it. The court held that – assuming these allegations were true – the disclosure was a violation of the FMLA and a valid grounds for lawsuit. A similar result was reached in a recent Mississippi case.
If you have any questions about how to handle confidential medical records of employees, or your rights or obligations under the FMLA right to privacy, call New Orleans employment lawyer Charles Stiegler at (504) 267-0777 or email me today.