EEOC Reminds Employers that Personal Health Information and Occupational Health Information Must be Maintained in Separate Files

Gregory S. Spicer

According to a recent U.S. Equal Employment Opportunity Commission (EEOC) opinion, personal health information, defined as information obtained in the course of diagnosis and treatment, and occupational health information, defined as medical information concerning an employee’s ability to work, should be maintained in separate files. The EEOC explained that an employer’s right to request or otherwise access personal health information about job applicants and/or employees is strictly limited by the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act; as is an employer’s right to allow individual health service providers access to an applicant/employee’s occupational health record. Should an employer choose to keep both personal health information and occupational health information in the same file, the likelihood that access to that combined file will result in an ADA or GINA violation is substantially higher than if the personal health information and occupational health information were maintained in separate files. Maintaining information in one file coupled with other allegations of disability discrimination may lead a fact finder to the conclusion that the employer took an employee’s medical condition into consideration when making an employment decision. Employers, therefore, should maintain personal health information and occupational health information in separate and distinct files in order to minimize potential liability.

This Update is not intended to be legal advice, but rather is intended to inform the reader of problem areas and recent developments in labor and employment law. If legal advice is required concerning a particular matter, your attorney should be consulted.