Human Resource Blog

Requesting Personal Medical Information

One of our employees was recently on a leave of absence. During this time, her sister came and brought us a note from the doctor treating our employee, which stated that she was being treated for a “disabling condition.” The sister disclosed to us that the employee suffers from bipolar disorder and was under a doctor’s care because she had stopped taking her medication and had suffered an episode. The sister also let us know that the employee is pregnant.

The employee returned back to work the next week and thus far there have been no problems perceived. She told her manager, who then told me (I’m the HR administrator) that the employee disclosed she was back on her medication for bipolar disorder and also that she was indeed pregnant.

Yesterday I got an email from the president of the company, asking whether or not this employee had reported or if we had information in her file that she was taking medication for bipolar disorder. The president wants this information documented in her file and also wants to be notified whenever I become aware that an employee is on medication. Is this legal? I tend to think that an employee’s personal medical information is just that - personal - and not subject to an employer’s common knowledge.

This is probably a violation of ADA, and certainly not considered a best practice in the HR field. (But first, a brief word about this situation: with a sister like this, the employee certainly does not need enemies!)

The ADA or Americans with Disabilities Act prohibits employers from taking any employment action based on an employees disability or percieved disability. This means, for example, that an employee cannot be denied a promotion, or a salary increase, because of a disability like bipolar disorder. In addition, employers must offer reasonable accommodations to employees with disabilities…and bipolar disorder would certainly qualify.

That is one reason why any and all of an employees private medical information should be kept in a confidential file, separate from the employees personnel file. Keeping the info in the personnel file suggests that it will be used to make employment decisions and to illegally discriminate against disabled employees.

In some cases (especially if the employer is self-insured) an employees private health information may be confidential under HIPAA. This happens when the HR director or supervisor is discussing health care benefits with the employee, and learns protected information during that conversation.

The Pregnancy Discrimination Act also prohibits employers from taking any employment action against a worker, based on her pregnancy.

It is a best practice to keep employee private health information confidential, even though free disclosed information is not legally protected.

Can an employer ask about an employees personal medical information? Yes, in most cases an employer can. However, the employee is under no obligation to share that information and frankly, it is inappropriate for the employer to even ask. Many employees on regular medication (blood pressure meds, insulin for diabetes, birth control pills) will not qualify as disabled. However, by asking, the employer implies that he will use this information to illegally discriminate against these employees, based on a percieved disability, which is covered under the ADA. In other words, even if someone who is diabetic, depressed or has herpes is not legally considered disabled, they are protected by ADA from discrimination because the employer believes that the employees physical condition is a disability.

Beginning in January 2009, the EEOC definition of disability will be expanded. The new definition could well include individuals with diabetes, high blood pressure, minor depression, etc. But even under the current definition, the bi-polar employee is covered.

Bipolar disorder was once a major handicap. Today, many people with bipolar lead ordinary, productive lives, thanks to a variety of medications.