Medical privacy rights don’t end when you begin employment 

Last week, this column addressed a question posed by Jaime, a reader who had sought psychiatric treatment for depression after a sexual assault.

As part of her application for disability leave and benefits, she submitted a form to her psychiatrist, who provided her employer not only with her diagnosis and proof of her need for time off, but also details regarding the cause of her depression, her sexual assault and the fact that she had been drinking more.

Her employer, after gaining this information, insisted that she go to rehab, and she later became aware that her employer had shared her medical information with her co-workers.

In the previous column, I addressed the legal rights and responsibilities arising out of the physician-patient relationship and legal liability for the violation of privacy rights. This week, I will describe the legal obligations of an employer to protect an employee's medical information.

California Civil Code Section 56.20 establishes legal obligations for an employer to protect and safeguard medical information in an employer's possession.

Section 56.20 provides that each employer that receives medical information shall establish appropriate procedures to ensure the confidentiality and protection from unauthorized use and disclosure of that information.

These procedures may include, but are not limited to, instruction regarding confidentiality of employees who are handling files containing medical information, and security systems restricting access to files containing medical information.

Generally, the information may be used only for the purpose of administering and maintaining employee benefit plans, including health care plans and plans providing short-term and long-term disability income and workers' compensation.

Information can also be used for determining eligibility for paid and unpaid leave from work for medical reasons.

There are two forms of privacy interests at stake here: informational privacy rights in precluding the dissemination or misuse of sensitive and confidential information, and privacy involving interests in making intimate personal decisions or conducting personal activities without observation, intrusion or interference.

In this case, both of those privacy interests have been violated by Jamie's employer's actions.

In the case of Pettus v. Cole, the court stated, "It is reasonable for an employee to expect that details of his personal life and thoughts, communicated in confidence to a psychiatrist, will be shielded against scrutiny by his employer. This is true notwithstanding the fact that the employee has placed his mental condition in issue by requesting paid leave for medical reasons, has submitted to psychiatric examination, and knows that the psychiatrist will report back to the employer."

The Pettus court stated: "We are aware of no law or policy which suggests that a person forfeits his or her right of medical self-determination by entering into an employment relationship, or by requesting paid leave under a benefit plan that is voluntarily provided by the employer, or by submitting to a psychiatric examination by an employer-aligned physician. It is reasonable for the employee to believe that, notwithstanding the fact the employer is paying for the examination and will pay benefits upon adequate proof of disability, he or she will remain free to control both the information flow and the medical decision-making about a disabling medical condition.

"Indeed, it would be unprecedented for this court to hold that an employer may dictate to an employee the course of medical treatment he or she must follow, under pain of termination, with respect to a nonoccupational illness or injury. It is, thus, eminently reasonable for employees to expect that their employers will respect — i.e., not attempt to coerce or otherwise interfere with — their decisions about their own health care, including those which relate to drug or alcohol treatment."

Therefore, a case such as Jamie's has previously been addressed by an appellate court. When a case is this similar to a fact pattern, we state that the case is "on-point on all fours." As I stated last week, your doctors should have limited their disclosure to only the nature of your condition and the amount of time needed for your disability.

Equally important, your employers should never have let any of your co-workers know about your private medical information or your sexual assault. You have rights and they have been violated.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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