Occasionally employees will experience difficult times in their personal or work life. Many employers have available an employee assistance program to which struggling employees may be referred. While the employer may be curious as to the details of any such counseling meetings, Minnesota law protects the confidentiality of those records.
In general, no portion of employee assistance records, or participation in employee assistance services, may be disclosed to a third person, including the employer or its representative, without the prior written consent of the person receiving services or the person’s legal representative. Certain disclosures may be made without the employee’s consent. The law does not prohibit disclosure: (i) pursuant to state or federal law or judicial order; (ii) required in the normal course of providing the requested services; or (iii) if necessary to prevent physical harm or the commission of a crime. Minn. Stat. § 181.980, subd. 5.
To further protect the confidentiality of the employee assistance records, to the extent an employer does possess any such records, they must be maintained separate from personnel records and must not become part of the personnel file. Minn. Stat. § 181.980, subd. 3.
An employee may similarly be curious about their own records. Upon a written request, an employee receiving services may review and obtain a copy of their employee assistance records. Employee assistance records do not include: (i) written or recorded comments or data of a personal nature about a person other than the employee, if disclosure of the information would constitute an intrusion upon that person’s privacy; (ii) written or recorded comments or data kept by the employee’s supervisor or an executive, administrative, or professional employee, provided the written comments or data are kept in the sole possession of the author of the record; (iii) information that is not discoverable in a worker’s compensation, grievance arbitration, administrative, judicial, or quasi-judicial proceeding; or (iv) any portion of a written, recorded, or transcribed statement by a third party about the employee that discloses the identity of the third party by name, inference, or otherwise. Minn. Stat. § 181.980, subd. 1. The employee assistance provider must comply within seven working days (14 days if the records are located outside the State of Minnesota). Minn. Stat. § 181.980, subd. 2.
Takeaway: Employers should be careful to not interfere with the confidentiality of the employee assistance program. If an employer is invited by the employee to have access to the records of those sessions, the company should confirm that consent in writing.