Privacy Issues in the Workplace

“any individually identifiable information, in electronic or physical form, in possession of or derived from a provider of health care, health care service plan, pharmaceutical company, or contractor regarding a patient’s medical history, mental or physical condition, or treatment. ‘Individually identifiable’ means that the medical information includes or contains any element of personal identifying information sufficient to allow identification of the individual, such as the person’s name, address, electronic mail address, telephone number or social security number, or any information that, alone or in combination with other publicly available information, reveals the individual’s identity.” 134

2. H EALTH I NSURANCE P ORTABILITY AND A CCOUNTABILITY A CT (HIPAA) The Department of Human and Health Services (DHHS) under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) 135 enacted regulations protecting medical information. The federal regulations, entitled Standards for Privacy of Individuality Identifiable Health Information (Privacy Rule), protect individually identifiable health information of patients and, in some cases, employees. In particular, the Privacy Rule imposes standards regarding the rights of individuals who are the subjects of individually identifiable health information. The Privacy Rule also contains standards regarding the authorized and required uses and disclosures of this information by covered entities, and imposes several administrative burdens and onerous penalties for non-compliance. 3. T HE F AIR E MPLOYMENT AND H OUSING A CT (FEHA) The Fair Employment and Housing Act (FEHA), California Government Code sections 12900, et seq., generally prohibits employment discrimination on the basis of, among other things, an employee’s physical/mental disability or medical condition. The FEHA is relevant in the context of a discussion of the confidentiality of medical records because it restricts the ability of employers to inquire about the medical condition and medical history of prospective and current employees. A violation constitutes an unlawful employment practice and may give rise to liability. 136 4. T HE A MERICANS WITH D ISABILITIES A CT (ADA) The Americans with Disabilities Act (ADA), 42 U.S.C. sections 12101- 12213, is the federal counterpart to the FEHA. Like the FEHA, it prohibits employment discrimination on the basis of a physical or mental disability. And, like the FEHA, it restricts the ability of employers to require prospective and current employees to undergo physical examinations as well as to inquire into their medical histories.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 47