I filed an anonymous OSHA complaint against my employer, regarding their lack of safety response after I was assaulted on the job by a former client (holding a weapon). There were previous threats by this person that were ignored when I called attention to the issue. Their response to OSHA included a certified letter they sent to me. This letter, they concluded, was necessary as a response to what they did to address safety concerns. However, also in this letter included information about my application for FMLA and ST Disability. They sent this letter to managers company-wide and plan to post it for all employees to see, along with the OSHA complaint. Is this allowed? It does not seem right to me, and quite frankly is humiliating. I am currently receiving FMLA and workers' comp.
The answer to your question depends on a number of factors. For example, when you applied for FMLA leave, you should have been required to submit a certification of your medical need from your health care provider. That certification would have required very limited information regarding your medical condition (or that of a family member if applicable). Assuming you did not sign a release for your employer to obtain your medical records, the information provided by the medical provider for the FMLA certification was covered by HIPPA and therefore should not be disclosed to your management and certainly not to your co-workers. Your employer's actions may violate HIPPA. Although there is no private cause of action for HIPPA violations, you can file a complaint for the violation with the U.S. Dept. of Health and Human Services. Of course, this depends on exactly what information your employer has disclosed.
Other issues that may be involved are whether your employer is retaliating against you for being on FMLA and workers' comp, as well as whether you are being retaliated against for reporting the employer to OSHA (which could be a whistleblower claim).
As you see, there are several issues that need to be explored. There may also be state claims that apply to your situation. Please see a local employment attorney. Good luck.
I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.
Generally I agree with Ms. Marshall, except that the Health Insurance Portability and Accountability Act, 42 U.S.C. sections 201 et seq. (HIPAA) does not prohibit an employer from revealing confidential medical information about employees (unfortunately). Take a look at the info available from HHS via this link: http://www.hhs.gov/ocr/privacy/hipaa/understanding/consumers/employers.html. The United States Department of Health and Human Services is responsible for enforcing HIPAA: http://www.hhs.gov/ocr/privacy/hipaa/enforcement/index.html. As Ms. Marshall said, there is no private right of action (an individual cannot sue for violation of his or her HIPAA rights).
However, both the FMLA and the ADA require an employer to maintain confidentiality in an employee's medical records. (I don't know if the ADA applies to your situation or not. Please look at my guide on the ADA: http://www.attorneyqna.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment.) Generally, both laws prohibit an employer from sharing an employee's medical information with others other than on a need-to-know basis. For example, the U.S. Department of Labor provides this statement on its FMLA web site (http://www.dol.gov/compliance/guide/fmla.htm):
"Records and documents relating to medical certifications, re-certifications or medical histories of employees or employees’ family members, created for purposes of FMLA, are required to be maintained as confidential medical records in separate files/records from the usual personnel files. If the Americans with Disabilities Act (ADA) applies, then these records must comply with the ADA confidentiality requirements. Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations. First aid and safety personnel may be informed, where appropriate, if the employee’s physical or medical condition might require emergency treatment. Government officials investigating compliance must be provided access to relevant information."
The confidentiality requirements under the ADA are even more explicit. To get a better understanding of the employer's rights and your rights, please look at my guide on medical inquiries and examinations, and medical confidentiality under the ADA: http://www.attorneyqna.com/pages/show?category_id=6&permalink=medical-information-and-the-ada--inquiries-and-confidentiality.
I suggest you provide your employer with the above citations and politely as it to respect your medical privacy and the confidentiality requirements of the law.
Now, because employers can be . . . well . . . inappropriate, know that taking this action could result in the loss of your job due to employer retaliation. While it is illegal to retaliate against an employee who makes a good faith complaint about illegal circumstances, all the law does is provide a remedy after the fact; the law cannot prevent your employer from taking retaliatory action in the first place. You may find yourself out of a job in this terrible economy and unable to find a replacement. No law suit, no matter how successful, can ever give you back the lost time and lost peace of mind that are taken from you during any litigation.
You know your employer and I do not. You know the sensitivity of your medical information and I do not. You may need to adjust my warning above to fit your circumstances.
