Can I Tell My Staff About An Employee’s Health Condition? by Jim Guttmann, on June 07, 2016 In employee approaches the owner of a large retail store to inform her that he has Post Traumatic Stress Disorder (PTSD) which will require time away from work for counseling. During the meeting, the owner doesn’t ask the employee if she can tell other staff members about this health condition nor does the employee specifically grant permission. Under these circumstances, can the owner share this information with others at work? First of all, would disclosure of this information to staff violate the employee’s privacy rights under the Health Insurance Portability and Accountability Act (HIPAA) regulations? The answer in this instance is actually “No.” HIPAA does not cover employers, per se. HIPAA only applies to the covered entities of health care providers, health plans and health clearing houses. The only way HIPAA would apply is if an employer is one of these three covered entities. Does this mean that the information can be freely shared? Well, it depends on what information is being shared and to whom. According to the Equal Employment Opportunity Commission (EEOC), the individualized assessment of virtually all people with PTSD will result in a determination of disability under the Americans with Disabilities Act ( ADA). The ADA requires employers to keep medical information confidential, subject to certain narrow exceptions. Under the ADA the owner may disclose such information only to: Supervisors and Managers if it relates to “necessary restrictions on the work or duties of the employee and necessary accommodation;” First Aid and Safety Personnel “when appropriate, if the disability might require emergency treatment;” Government Officials investigating compliance with the ADA, upon request; State workers’ compensation offices, state second injury funds or workers’ compensation insurance carriers in accordance with state workers’ compensation laws, if there is an injury on the job; and Agents for insurance purposes. Considerable guidance on this subject from EEOC (who enforces the ADA) can be found here, including what information may be shared. For instance, the guidance differentiates between a mere notice that an employee has taken sick leave or had a doctor’s appointment, which is not considered to be covered medical information, and documentation which contains information regarding the employee’s diagnosis or symptoms. The overall theme of EEOC’s guidance is that medical information should be shared with others only on a “need to know basis” and only to the extent that the information shared is vital to them. Of course, the employee with the medical condition may choose to share his/her own personal health information at any time. Once disclosed openly, it’s no longer protected information. Now let’s go back to the example where the employee confided with the retail store owner. What about the employee’s co-workers? Wouldn’t they have a legitimate need to know? Would it not be okay for the supervisor to share information with co-workers who may have to pick up the slack in the employee’s absence? In this instance, we would strongly recommend getting the employee’s written permission as to what can be shared, if anything. If the employee does not want the medical condition shared with others, the supervisor should honor that request. So, let’s say that the employee does not want anything shared. What could the supervisor say to the co-workers who feel that the employee is receiving different or special treatment? In response, the supervisor could emphasize that she tries to assist any employee who experiences difficulties in the workplace. She may add that many of the workplace issues encountered by employees are personal and, that in these circumstances; it is the company’s policy to respect employee privacy. Finally, she could reassure a co-worker that his privacy would be similarly respected if he ever had to ask the company for some kind of workplace change for personal reasons. If the co-worker persists with questions about the employee’s disability or accommodations, it is recommended that the supervisor avoid discussion of that subject. Instead, the supervisor could say that the company is acting in compliance with federal law or for a legitimate business reason. Or, the supervisor can simply say that she is not at liberty to discuss any information about the other employee. The bottom line is that employers who obtain medical information should first “pause” before necessarily sharing information with others. Based on the circumstances, improper sharing of information could violate the ADA, The Family and Medical Leave Act (FMLA), Fair Credit Reporting Act (FCRA), HIPAA or state law. For that reason, we highly encourage you to work closely with a Human Resources Professional or Employment Law Attorney if you are concerned about how medical information is being shared in your organization. Jim Guttmann As a LandrumHR Senior Human Resources Manager, Jim is certified as a Senior Professional in Human Resources (SPHR) and has over 30 years of HR generalist experience. He holds a Masters in Business Administration from Florida State University and is an active member of the Raleigh-Wake Human Resources Management Association in North Carolina. Jim is also certified as a County Mediator in the State of Florida and in the administration of the Myers Briggs Type Indicator (MBTI). Jim is also very involved in his church community and is commissioned as Stephen Ministry Leader. View more blogs by Jim Guttmann 0 Related Articles Cursing in the Workplace: Is it Legal? Americans with Disabilities Act: What You Can Do When an Employee Seems Unfit for Work Payroll Tax Basics: Beyond Federal Employment Taxes The Ten Commandments of Hiring Cursing in the Workplace: Is it Legal?