As companies begin requiring COVID-19 vaccines and medical screenings, employees are asking the question: “How confidential is my medical information?” Their employers may request newly hired staff to provide medical information, or it may be reviewed when the company does a background check. Although these are not new procedures, due to recent events, employees are wondering how far is too far when companies are handling medical information.
Here is how to tell if you are violating your employees’ privacy rights.
Background Checks
When hiring a new employee, every employer goes through the process of reviewing a background check on their candidates before deciding whether to hire them or not. When agreeing to a background check, they may wonder what questions their employer is allowed to ask, especially relating to medical information. The U.S. Equal Employment Opportunity Commission (EEOC) states that “Unless the employer is asking for medical or genetic information, it’s not illegal to ask you questions about your background or to require a background check. (Employers aren’t allowed to ask for medical information until they offer you a job, and they aren’t allowed to ask for your genetic information—including family medical history—except in very limited circumstances.)”[1] Employers are not allowed to ask about medical information until they have already offered a candidate a position, and the medical information cannot be genetically related. Read on to learn about how to handle various medical information.
Vaccination Proof
In terms of the COVID-19 vaccine, employers requiring employees to receive the vaccination are legal matters that depend on state law or other applicable law. If an employer mandates the vaccine, they may ask for proof of vaccination. In this case, the Centers for Disease Control and Prevention (CDC) states: “Whether an employer may require or mandate COVID-19 vaccination is a matter of state or other applicable law. If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their healthcare provider, the employer cannot mandate that the employee provide any medical information as part of the proof.”[2] In other words, they can require proof of vaccination, but they cannot request any additional medical information as means of proof.
Requests from Employer
Similar to asking for vaccination proof, an employer may ask an employee for a doctor’s note or other health information if they need it for health insurance, sick leave, or wellness programs. However, they are only allowed to ask for this information from the employee directly and not from their health provider. The U.S. Department of Health and Human Services (HHS) states that under the HIPPA Privacy Rule, “If your employer asks your health care provider directly for information about you, your provider cannot give your employer the information without your authorization unless other laws require them to do so.”[3] Therefore, an employer is required to go to the employee directly to ask for medical information.
Medical Records
If an employer holds any medical information, such as medical questionnaires, benefit claims, doctor’s notes, medical leave records, etc., they must keep it in a separate confidential file apart from any other general or personnel files. The EEOC states that “The ADA requires employers to treat any medical information obtained from a disability-related inquiry or medical examination (including medical information from voluntary health or wellness programs (9)), as well as any medical information voluntarily disclosed by an employee, as a confidential medical record. Employers may share such information only in limited circumstances with supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA.”[4] Any medical information should be secured from all other files, and previous employers are not at liberty to share it with any future or current employer.
ClearStar and Background Checks
When it comes to requesting background reports unrelated to general background checks, ClearStar is an expert at keeping in line with any laws regarding private information. We offer background checks on employees that include reports on criminal records, sex offender registry status, employment and education verifications, personal reference checks, and many more searches. We also provide global background checks with an industry-first GDPR-ready platform that adapts to local ID numbers, time zones, addresses, names, and more in over 230+ countries. ClearStar also offers a full suite of medical information services, such as drug tests, vaccinations, titers, physicals, etc. If you have any questions on background checks, contact our in-house legal staff for guidance.
To place an order for a COVID-19 test or another drug test, contact the ClearStar Medical Information Services office at 321.821.3383 or [email protected]. To ask about background checks and other medical screening services, call +1.877.796.2559.
[1] https://www.eeoc.gov/laws/guidance/background-checks-what-job-candidates-and-employees-should-know
[2] https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/essentialworker/workplace-vaccination-program.html
[3] https://www.hhs.gov/hipaa/for-individuals/employers-health-information-workplace/index.html
[4] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees
