One of the EEOC’s functions – one separate from its enforcement activities related to non-federal employers – is to adjudicate complaints and appeals from federal employees that allege violations of Title VII, the Rehabilitation Act (analogous to the Americans with Disabilities Act), the Genetic Information Non-Discrimination Act, and the Age Discrimination in Employment Act. While these decisions are not binding upon non-federal employers, the rulings in them provide an indication of how the EEOC would rule when faced with a similar complaint from a non-federal employee.

In Celine D. v. Brennan, Postmaster General, EEOC Appeal No. 0120152203, the employee alleged a violation of the Rehabilitation Act because her employer included copies of her medical records in her personnel file, which file was widely accessible within the agency. The employee did not allege that anyone had actually seen the medical records or that she was otherwise harmed, but simply alleged that they were improperly stored.

The pertinent regulation requires that, “information obtained . . . regarding the medical condition or history of any employee shall . . . be treated as a confidential medical record, except that supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodation.” In Celine D., the EEOC held that the improper storage, in and of itself, without any evidence of actual harm, is a violation of the Rehabilitation Act (and the Americans with Disabilities Act contains an identical provision). The requirement applies to confidential medical information obtained from any employee and is not limited to individuals with a disability.

There is no reason to believe that the EEOC would adjudicate such a situation differently were a non-federal employer involved. Thus, all employers covered by the Americans with Disabilities Act (as well as analogous state statutes) must treat all medical information obtained from or on behalf of employees as a confidential medical record and must keep it separate and apart from all personnel files or other files. Access to such medical information must be restricted to supervisor and managers evaluating a reasonable accommodation or work restrictions.