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Aug16

HIPAA and FMLA

Is it a HIPPA violation if this occurred: I was helping a new hire and telling him that he needed to be careful with others taking his hours. (Many try to send others home when slow). He then replied, “Oh let me guess who does that, it’s that girl Zoey, isn’t she on FMLA and always calls out?” This new employee at our office had not met “Zoey” so we believe this new hire heard it from someone in management in the office. Can you please advise?

The Health Insurance Portability and Accountability Act (HIPAA) mandates that covered entities comply with requirements to protect the privacy and security of health information. Covered entities are health care clearinghouses, certain health care providers, and health plans. Common covered entities include doctors, clinics, company health plans and government programs that pay for healthcare.

The HIPAA Privacy Rule protects “individually identifiable health information”, including data that relates to:

  • an individual’s past, present or future physical or mental health or condition,
  • the provision of health care to an individual, or
  • the past, present, or future payment for the provision of health care to an individual;

and data that identifies an individual or for which there is a reasonable basis to believe it can be used to identify an individual. Individually identifiable health information includes many common identifiers (e.g., name, address, birth date, Social Security Number).

The Privacy Rule doesn’t regulate every employer, only those considered covered entities. An employer is not defined as a covered entity just by being any employer or by offering group healthcare coverage.

Basically, in order for a HIPAA violation to occur the employee (“someone in management”) must work for a covered entity and he/she must have disclosed protected health information. Stating an employee is on leave under the Family & Medical Leave Act (FMLA) doesn’t constitute disclosing protected health information.

Though the comments are most likely not HIPAA violations, there is still an issue that must be addressed.

Obviously, comments are being made about an employee’s FMLA absences. Depending upon the types of comments and subsequent treatment of the employee on FMLA leave, there may be an issue of retaliation.

It’s unlawful to discriminate or retaliate against an employee who has used FMLA leave or to use the taking of FMLA leave as a negative factor in any employment actions such as hiring, promotion decisions, or disciplinary actions. Any comments being made about the employee on FMLA leave can be evidence to support a retaliation claim if the employee on FMLA leave perceives his/her manager is taking adverse action against her.

So, it’s best to discuss the situation with the manager or management team in question. Let them know that it’s inappropriate to comment on an employee’s absence with other employees. Remind them of their responsibilities under HIPAA, if applicable, and the FMLA. Further, make sure they’re aware that managers and supervisors can be held individually liable for FMLA violations.

HTH!

This entry was posted on Tuesday, August 16th, 2016 at 7:52 pm and is filed under
Labor Laws.
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