Human Resource Blog

HIPAA and H1N1 Flu

Can an HR Manager maintain a list by name of employees out sick which would include the reason the are out sick in the name of the H1N1 Flu if they are maintaining the list for possible business realignment of customer service?

This is a gray area, and the employer should be very cautious here. There is no law that permits an employer to compel employees to furnish a diagnosis when they are absent — and it is very poor practice for the employer to request this information. Given the current H1N1 pandemic, it would be entirely reasonable for the employer to ask employees *Is this absence due to H1N1?* However, an employee who refused to answer probably could not be disciplined or terminated.

Generally an employer has no obligation under HIPAA to keep secret information that the employee volunteers about his or her health condition. HIPAA applies primarily to employers who are self-insured, or who are healthcare providers like doctors and hospitals. HIPAA may also apply to HR managers and supervisors when health information is uncovered in a discussion about benefits. However, it does not necessarily apply to every communication between the employer and employee.

ADA is a bigger issue here. Under the Americans with Disabilites Act, employers are prohibited from making employment decisions based on an employees private health information. That would almost certainly include H1N1 status. In fact, this private health information must be kept in a separate file, where even the employees supervisor does not have access to it. So if you are deciding whom to lay off, it would be appropriate to make that decision based on overall attendance, but not on medical information.

ADA also  prohibits discrimination based on a perceived disability. A competent lawyer could argue that you are treating employees with H1N1 as if they had a disability, and discriminating against them illegally based on their protected medical information.