Employers have lots of opportunities to gain information about employees and prospective employees through applications, interviews, testing, employee evaluations, complaints, requests for leave, insurance, and on and on. Most of this information is gathered in appropriate ways for legitimate business purposes, but employers can still get in trouble if they are responsible for disclosure of information — particularly medical information — to the wrong people. Some things to bear in mind:
Regularly clean out your files. The easiest way to avoid inadvertently disclosing confidential information about an employee is not to have the information in the first place. Have the review of your files done by someone familiar with all the personnel laws that apply to your business.
Keep medical records separate and confidential. You have to do this regardless of how minor the medical information might seem, such as return-to-work slips from doctors, workers’ comp claims, and insurance applications or claims.
This is important because employment-related decisions should not be based on medical information. The medical files should be kept in separate folders in a separate file cabinet, to which access is restricted.
Communicate medical information only to those who are recognized by the Americans with Disabilities Act as having a “need to know” — supervisors, managers, first aid and safety personnel and government officials.
Don’t ask and don’t tell. Information given during reference checks can be a huge source of litigation. If the applicant doesn’t get the job after a former employer was contacted, the inference is frequently made that unfavorable things were said.
A written policy should be published and followed in every company that nothing more than a confirmation of past employment and dates of employment will ever be given without clearance at the highest levels. If the former employee wants you to confirm anything more require a specific written authorization.
Some people love to gossip, and while you may not be able to control what they do on their own time, you can prohibit them from passing on this kind of comment to outsiders. It is not enough to just ban negative comments. Untruthful positive comments can be just as bad: You risk being accused of treating some employees differently than others.
“None of your business” is sometimes the right answer. Do not discuss medical information. If faced with the need to communicate about accommodation issues to a non-supervisor, use general language such as, “I need you to perform a couple of Joe’s job duties this week.” No co-worker has a right to know why another is off work or is on light duty. If the person being accommodated wants to tell others, that’s up to him.
Be consistent. The easiest way to find yourself in trouble is to treat one employee more favorably than another. It not only invites an outsider to wonder why, but it also gives the disfavored person a reason to complain. Many times I have heard employers say that one employee was terminated for conduct that was tolerated in another because one was more essential to the business than the other.
Double standards mean double trouble. In particular, if you require post-offer of employment drug screenings or medical exams of one employee, you must require them of all employees in that same category.
Whenever a client asks us whether it can take a particular action, the first question I ask in return is, “Who stands to be hurt by your decision?”
In the employment context, one who is fired, demoted or turned down for a position is that person.