Maintaining employees’ personal and occupational health information in a single electronic medical record (EMR), particularly one that permits individuals with access to the EMR to view any information in the record, “presents a real possibility” that the ADA or the Genetic Information Nondiscrimination Act (GINA), or both, will be violated, according to an EEOC informal discussion letter released on June 30, 2011.
An agency letter, dated May 31, 2011, and signed by EEOC Legal Counsel Peggy R. Mastroianni, addresses two issues:
1. whether an employer or its agent should have access to an employee’s personal health information without the employee’s consent; and
2. the manner in which employers must safeguard employees’ medical information.
Title I of the ADA and Title II of the GINA both limit employer access to medical information. The letter provides a roadmap to when personal health information about applicants or employees may be accessed, regardless of whether an employer or an occupational health provider maintains information in paper or electronic files.