August 30, 2011

Keeping Medical Information Confidential

What can employers do with medical information, particularly medical information that is protected by the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA), is an open-ended question.  The Equal Employment Opportunity Commission (EEOC) is the division of the Department of Labor responsible for administering both the ADA and GINA.  The EEOC has recently issued two informal, non-binding Opinion Letters expressing some thoughts on these matters. 

Confidentiality Requirements

In one informal EEOC Opinion Letter (ADA and GINA: Confidentiality Requirements) the question of how to store medical information is addressed.  Not surprisingly, the Letter affirms that medical information must be kept separate from an individual’s general employment file, and the medical information must be kept confidential.  This Letter emphasizes the importance of keeping medical information confidential, whether it is genetic information or family medical history, or medical information from an individual protected by the ADA; and is true whether the information is electronic or hard copy.  The Letter goes on to address a specific situation of occupational and non-occupational electronic medical information in a unique situation in which the employer is the health care provider.  The EEOC affirms that just because the health care provider/employer has certain information, it cannot use it, and must protect it as any other employer would.

Incentives for Workplace Wellness Programs

In another informal Opinion Letter (ADA & GINA: Incentives for Workplace Wellness Programs), the EEOC addressed how genetic information can be used in conjunction with a wellness program.  Consistent with the GINA regulations issued a few years ago, genetic information and family medical history cannot be used for underwriting, nor for enrollment or in connection with enrollment.  The Letter affirms that financial incentives can be used to encourage participation in a wellness program, as long as the financial incentive is not contingent upon answering medical questions, in a health risk assessment for example, relating to genetic information or family medical history.  This Letter, unfortunately, does not address the ADA, and how the collection of medical information can be reconciled with the ADA (see Financial Incentives for Wellness Program Participation: Employers Beware, Benefit Beat, 4/5/11).  Clearly, additional guidance in this area would be useful.


The information contained in this Benefit Beat is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations.

As required by U.S. Treasury rules, we inform you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this Benefit Beat is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any penalties that may be imposed by the Internal Revenue Service.

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