FMLA & SICK LEAVE RECORD RULES
EEOC has very specific rules about where employee FMLA and sick leave medical documents can be stored. If the agency violates them, they may owe the employee money damages—as a recent Dept. of Justice case demonstrated.
According to EEOC, under the Rehabilitation Act and ADA, information “regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record ….” 29 C.F.R. § 1630.14(c)(1). This applies to medical information obtained from “any employee” and is not limited to individuals with disabilities.
Furthermore, the requirement applies to all medical information, including information that an individual voluntarily discloses. Employers may share confidential medical information only in limited circumstances: supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations, first aid and safety personnel may be told if the disability might require emergency treatment, and government officials investigating compliance with the ADA and Rehabilitation Act must be given relevant information on request. 29 C.F.R. § 1630.14(c)(1).
In the DOJ case the Agency did not maintain the complaining employee’s confidential medical information in a separate medical file. Instead, it placed the information, including documentation that identified Complainant’s diagnosis and described his symptoms, in a non-medical adverse action file in the Human Resources Department. That violated the Rehabilitation Act. See Higgins v. Dep’t of the Air Force, EEOC Appeal No. 1A13571 (May 27, 2003) (Rehabilitation Act violated where physician’s letter that identified employee’s diagnosis was placed in non-medical work folder maintained by employee’s supervisor); Brunnell v. U.S. Postal Serv., EEOC Appeal No. 07A10009 (July 5, 2001) (Rehabilitation Act violated where two letters from physician and medical release form were placed in employee’s personnel file. The employee was not required to prove that the Agency disclosed his confidential medical information to an unauthorized person.
Agencies can try to defend themselves by arguing that they were unaware the medical information was stored outside a medical file and even point to the fact that once they were made aware the information was outside a medical file that they immediately corrected the situation. But, those defenses will not always work. If they do not, then as in this case the employee has a pretty good expectation of a $2,500 payment. See Mayo v. Holder, EEOC Appeal No. 0720120004 (2012)
Consequently, whenever a manager demands an employee provide medical information, he/she puts the agency at risk. If that information is passed up the line and someone keeps a copy, even an on-line copy, outside the formal agency medical files, the agency likely violates the law. FMLA leave requests and sick leave restrictions are probably the two most common situations where medical information is likely to be mishandled. A disability reasonable accommodation request is another, although there the request is usually worked by a trained EEO specialist who knows better than to let copies exist outside the formal medical files. So, union reps defending employees in these situations might want to go back and check various files to see if the employee’s medical information is stored there, e.g., the OPF, any separate discipline evidence files, leave folders, supervisors’ personal files, etc.