Many years ago, there was a game show called “I’ve Got a Secret.” A guest contestant would appear each week with a secret known only to the host and to the audience. A panel of four celebrities would each ask questions of the contestant to try and discover the secret. The contestant’s goal was to keep the panelists from finding out what the secret was to win a prize. In today’s world, we might compare this to The Masked Singer. Some of the more interesting episodes included a 96-year-old man who was the last surviving witness to the assassination of Abraham Lincoln. A guest couple, Mr. and Mrs. Armstrong, brought the secret that their son had been named that day to the US astronaut corps. Their son was Neil Armstrong (who became the first person to walk on the moon). It was a popular show in the early days of television, and a fun time was had by all!
This entertaining game show was based entirely on eliciting and disclosing secret information, and everyone was a willing partner. A great formula for a game show! But in the workplace, it can be a recipe for discrimination.
An employer must remember to keep medical information confidential for applicants or employees if they have disclosed a disability. Usually only human resources personnel should have access to this information, with a few exceptions, such as:
- Necessary accommodations that affect work or duties can be told to supervisors and managers when needed;
- If the disability might require emergency treatment, then first aid and safety personnel may be told;
- Relevant information can be shared with a government official investigating ADA compliance;
- In accordance with state workers’ compensation laws;
- Insurance purposes when appropriate.
Information from all medical examinations and inquiries must be kept apart from general personnel files as a separate, confidential medical record, available only under limited conditions specified in the ADA. Here are some tips and best practices to ensure confidentiality:
1. Keep information in a medical file in a separate, locked cabinet, apart from the location of personnel files.
2. Designate a specific person or persons to have access to medical files.
3. Train personnel and supervisors on confidentiality requirements of the ADA and other confidentiality laws.
4. Don’t discuss employee accommodations with other employees. Respond to inquiries of ‘different’ or ‘special’ treatment by emphasizing employer policy of assisting any employee who encounters difficulties in the workplace. The employer may also point out that many workplace issues encountered by employees are personal, and it is the employer's policy to respect employee privacy. As long as there is no coercion by an employer, an employee with a disability may voluntarily choose to disclose to coworkers his/her disability and/or the fact that s/he is receiving a reasonable accommodation.
5. Provide all employees with information about various laws that require employers to meet certain employee needs (e.g., the ADA and the Family and Medical Leave Act), while also requiring them to protect the privacy of employees. Such information could be delivered in orientation materials, employee handbooks, notices accompanying paystubs, and posted flyers.
6. Instead of tossing confidential information into the trash, shred or destroy the info.
7. When working on confidential information at your workspace, keep the information out of sight in folders or by placing face down on your desk.
8. When discussing confidential information on the telephone, be aware of who may be able to hear your conversation.
9. When faxing or copying sensitive information, remain at the machine until the task is completed and retrieve the originals.
10. Use a cover sheet with a confidentiality notice printed on it when faxing. Call ahead and alert the receiver so that they retrieve the info quickly.
Additional helpful information:
Technical Assistance Manual for Title I of the ADA (askjan.org)
Confidentiality of Medical Information under the ADA (askjan.org)
Information gathered from the Equal Employment Opportunity Commission website at www.eeoc.gov.