When you provide confidential medical information to your employer, what can you do to ensure this information remains confidential?  First and foremost, submit the minimum amount of information needed to obtain the benefit you are seeking.  Specific diagnoses and drug names are not needed in your response to a request for information. Also, when you submit this information, you should request confidentiality and limit the use of the information to the benefit being requested. Insist that the recipient obtain your written permission before transmitting the information to anyone else.  Finally, inform the recipient of the information that they could be held liable for any release of this information.  This language may sound harsh, but this makes it clear how important it is to you that your private information remain private.

If you follow the process described above, what can you do if  your medical information is released? The most relevant legal cause of action is wrongful  “publication of private facts.” The elements of this claim are 1) publicity given to private fact, 2) which would be highly offensive and objectionable to the reasonable person and 3) which is not of legitimate public concern. These claims are civil claims. This means that the offended party sues the other person for monetary damages.  The offended party can also ask for and receive equitable relief (i.e., specific actions from the accused party).  Equitable relief can include public retractions or the cessation of the complained activity (e.g., cessation of telling others your private information). 

Unfortunately, this cause of action is not recognized in all States. If your state does not recognize this as a cause of action, you may have a different cause of action called “intentional infliction of emotional distress” which also provides a legal way to hold people liable for releasing your private information to others.  However, this second claim is not as specific and may be more difficult to prove that than the “publication of private facts” claim.

Some jurisdictions have statutory provisions that protect this information.  You must check with an attorney about your State. In addition, the 1974 Privacy Act, provides protection for information collected by federal agencies.

Update on the Americans with Disabilities Act revisions: The EEOC has drafted the new regulations and has sent the revised language to other federal agencies for their review.  This language will eventually be released for public review. For more information see: http://www.eeoc.gov/ada/amendments_notice.html 

The Job Accommodations Network is offering a webcast on hidden disabilities in the workplace.  To watch this webcast see: http://breeze.jan.wvu.edu/p38549011/

Note: This is not legal advice.  I'm not your attorney.  Some of this information will vary in your state. This provides general information and a start in deciding what to tell your lawyer.

Nancy Mayer, Attorney-at-law