Human Resource Blog

ADA or HIPPA Violations

An employee went into a recovery treatment and the recovery facility had to fax disability papers to her 1 person HR dept. The HR representative told her manager (and possibly others)that she was in a recovery facility. Then her manager directly told another person (and possibly others) that she was in recovery during her absence from work. Is it then true, that both the HR person and the manager violated the employees confidential medical information?

This is a clear ADA violation. Under ADA, the HR person had a legal responsiblity to keep the employees private health information confidential — even from the employees supervisor. She should have simply told the supervisor that the employee was on leave related to a disability. If it was absolutely necessary for the supervisor to know, then the supervisor was also guilty of an ADA violation by disclosing it to others in the workplace. Unfortunately, this leaves you as an employer in a very bad position, if the employee should file a complaint about disability discrimination with the EEOC — the federal agency that enforces ADA.

To do damage control at this point, everyone who is aware of the employees treatment for drug abuse must be instructed to forget it, and not to discuss it with anyone else, ever.

It is also unlawful for the employer to take this information into consideration in making any employment decisions such as discipline, promotion, termination, etc.

The HIPAA issue is less clear. If the employee shared this information during a discussion about health insurance benefits, and the HR person passed it on, that would be a HIPAA violation. If the employer were self-ensured, that would make this a HIPAA violation. But not every ADA disclosure is covered by HIPAA.