The Essential Guide to Family & Medical Leave

286 | the essential guide to family and medical leave
EXAMPLE: Your employee, Cara, has disclosed to you that she is HIV-positive and
needs to take intermittent leave to attend medical appointments. One of your
company’s managers later asks you if you have noticed that Cara seems thin and listless.
You tell the manager privately that Cara is ill but “doesn’t have full-blown AIDS,”
so you hope she will be able to get treatment for her condition. You figure that a
fellow manager who has expressed concern for an employee may be told about the
employee’s condition, as long as it is done privately. Have you stayed inside the lines?
Unfortunately, no. Cara’s diagnosis is confidential medical information. You cannot
disclose confidential medical information just because a manager is genuinely concerned,
unless the manager needs to know because of restrictions on the employee’s
ability to work or the manager is a first aid provider at the worksite and the employee’s
condition may require emergency care.
Caution
The ADA’s confidentiality rule applies to employee medical records even
if the employee is not disabled. All employee medical records should be
treated as confidential, regardless of whether or not the employee has a
disability as defined by the ADA (see Chapter 11).
The confidentiality of employee medical records is also protected by the
Health Insurance Portability and Accountability Act (“HIPAA”; 42 U.S.C.
§ 1320d). In general, the HIPAA bars an employer from discussing an
employee’s medical condition with the employee’s health care provider unless
the employee has consented to the discussion. There are exceptions to this
general rule when health care is provided to the employee at the employer’s
request (for example, where the health care provider is retained by the
employer in connection with the employer’s medical benefits for employees).
You may need to ask for certain medical information covered by the
HIPAA in order to determine if a leave request is FMLA-qualified. You
can ask the employee to complete an incomplete medical certification or
for a second opinion from a health care provider. (See Chapter 8 for a full
discussion of how you can legally verify the medical reason for the leave.)