EMPLOYEE FILE UPDATE (09/07/2011)


EMPLOYEE FILE UPDATE:  On May 31, the EEOC issued a legal opinion which was made public on July 1 concerning employee files.  Some employers now maintain employee files on an electronic basis and it is predicted by some that many businesses will “go paperless” with all business records within the next decade.  The EEOC legal opinion focused on software packages which maintain personal health information and occupational health information for employees in a single Electronic Medical Record (EMR).  The EEOC cautioned employers that both the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) contain strict provisions on confidentiality.  The EEOC cautioned that maintaining both personal health information and occupational health information in a single EMR presents a real possibility that the ADA, GINA or both “will be violated” since the EMR might be accessed by other employees or healthcare providers.  The EEOC suggested that employers wishing to maintain electronic records on employees maintain a separate medical record for personal health information, including family medical history or other genetic information.  While neither the ADA nor GINA specifically reference encryption, password authorization or other electronic security, the EEOC stressed that if medical and genetic information is maintained electronically, employers must ensure that it remains confidential and disclosed only to the extent permitted by those two laws.  This EEOC opinion letter serves as a reminder to any construction industry employers wishing to move into the “paperless office” arena that the confidentiality provisions of the ADA and GINA must be followed.  Failure to do so could result in a legal action which could easily be avoided.         By Bill Harding, Chapter Attorney

 

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