Governor of Virginia has ordered that people’s access to legal services is an “essential service.” Therefore, my legal practice is open for business during the pandemic. I can meet with you over the phone or via video conference.

When employees share their medical issues with employers to request leave or accommodations, do HIPAA’s privacy restrictions apply?

No.  The privacy requirements of the Health Insurance Portability and Accountability Act (HIPAA) generally do not apply to employers.  However, other laws impose similar requirements upon employers receiving employee medical leave and accommodation requests.

The Americans with Disabilities Act (ADA) applies to employers with 15 or more employees and imposes strict confidentiality requirements.   Under the ADA, employers must not disclose medical information they learn about an applicant or employee, with limited exceptions.  (For example, supervisors and managers often must learn about employee medical restrictions and accommodations.)  Employers must even safeguard information that employees volunteer about their medical conditions without a doctor’s note or other proof of diagnoses or treatment.

Family and medical leave laws also restrict employers in how they use and disclose employee medical information surrounding leave requests.  These laws include the Family and Medical Leave Act, which applies to employer locations with 50 or more employees within a 75-mile radius.

Finally, state laws further protect employee medical information from disclosure.  If an employer makes known employee medical information within or outside the office, the employee may claim defamation or invasion of privacy under state law.

Because of the different laws that apply, when employees share medical information to request leave or accommodations, employers should seek qualified legal counsel to advise them.

The above is for information purposes only and does not constitute legal advice.

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