On May 31, 2011, the EEOC issued an opinion letter that essentially opined that employers should not maintain personal health information (i.e., information obtained in the course of diagnosis and treatment) and occupational health information (i.e., appropriate medical information concerning an employee’s ability to work) in a single paper or electronic medical record (EMR). The EEOC stated that an employer’s right to access personal health information regarding applicants and employees and allow access to occupational health information by individuals providing health services unrelated to employment is strictly limited under the ADA and the Genetic Information Non Discrimination Act (GINA). Among other things, the ADA provides that information obtained by an employer regarding the medical condition or history of an applicant or employee must be collected on separate forms, kept in separate medical files, and treated as a confidential medical record. Similarly, if an employer has genetic information obtained under one of GINA’s limited exceptions, it also must keep this information separate from personnel files and treat it as a confidential record.
The EEOC further explained that regardless of whether an employer maintains information in paper or electronic files, it must ensure that personal health information about applicants or employees cannot be accessed, except under certain circumstances. As just one of several examples, because the ADA limits pre-offer inquires and prohibits an employer from withdrawing a job offer from an individual with a disability or making other discriminatory decisions based on a person’s actual or perceived medical conditions, an employer should be careful not to obtain more information than is necessary to determine whether a person can do a job, even at the post-offer stage. Once an individual begins working, an employer may only ask disability-related questions or require medical examinations in appropriate circumstances that are job-related and consistent with business necessity and potentially in other appropriate circumstances (which may include evaluating non-obvious disability leave requests and reasonable accommodations). GINA also prohibits (with limited exceptions) employers from requesting, requiring, or purchasing genetic information, including during the post-offer stage of employment. As such, an employer cannot ask for, or view, an employee’s complete medical record because it is likely to contain information unrelated to the need to make an employment-related decision or is otherwise unlawful. Readers are advised to consult with counsel before accessing any type of medical or genetic information, so the specific circumstances and other applicable federal and state law can be evaluated.
Thus, the EEOC concluded, maintaining personal health information and occupational health information in a single EMR presents a real possibility that ADA, GINA, or both will be violated.