The other day I explored whether an employer can be liable under the state or federal FMLA laws for disclosing private medical records. The simple answer is yes; however, actually and practically enforcing this protection is a little more complicated.
Here in Connecticut, private medical information provided to an employer is protected. In fact, private medical information disclosed to an employer for any reason must be kept in a file separate from the employee’s personnel file, and access must be limited. This rule applies to any private medical information disclosed to the employer for any reason, including FMLA leave.
Here’s where it gets confusing: there are two FMLA laws, the federal law and the state law. While both are similar in the benefits and protections offered to employees, the enforcement provisions are very different.
Under federal law, the disclosure of private medical information by the employer is considered an interference with the employee’s rights. While federal district courts conflict on whether a disclosure of an employee's medical information constitutes an interference claim under the FMLA, there is precedent out there to support the notion that labor regulations make it clear that confidentiality of medical information is a right provided and protected under the federal FMLA. Furthermore, in order to prevail, the employee must prove, through the preponderance of evidence, that the employer actually disclosed their private medical information. That may be difficult without a smoking gun or a credible witness.
Connecticut state law provides clearer protections and a remedy for a violation of the state FMLA law. The state FMLA law makes it very clear that “Records and documents relating to medical certifications, recertifications or medical histories of employees or employees' family members…shall be maintained as medical records….” State regulations further clarify this concept and provide a clear path for enforcement.
As with many labor related issues, all available administrative remedies must be exhausted before proceeding with a lawsuit. Complaints regarding FMLA violations must first be made to the State Department of Labor. Notwithstanding, the employee must prove that his or her private medical information was disseminated by the employer without permission. FMLA laws and protections only apply to employers, not individual employees.
That may not be much comfort to an employee who is being made fun of at work because of leaked private medical information, especially if the employee cannot prove the employer leaked the information. In that case, a hostile work environment complaint could be brough under the Connecticut Fair Employment Practices Act. The complaint could be made against the hostile employees individually or against the employer if the employer knew, or should have known, about the mocking.
If you have provided your employer with private medical information and are now facing harassment based on that information, I may be able to help. If you would like to schedule a consultation, please click here.