Medical Records and the Americans With Disabilities Act

(A message from the University Attorney)

Most of us know that an employee's medical records are confidential and may be used only in limited circumstances. The Texas Medical Practice Act (Occupation Code Chapter 159) contains detailed instructions regarding the confidentiality of physician-patient communications and patient records. But an employer, such as SWT, may obtain, maintain, and release medical information under certain circumstances. Here is a summary of the rules that apply under the Americans With Disabilities Act (ADA).

Obtaining an Employee's Medical Records. The safest time for SWT to obtain medical records is at the post-offer, pre-employment stage of the relationship. Before a job offer is made, medical inquiries are prohibited. After an employee begins working, only job-related medical inquiries are permitted. But between the two stages, SWT can subject applicants to medical exams provided all entering employees in the same job category are subjected to the same exams.

But, if a supervisor withdraws an offer of employment because of the results of the medical exam, he or she should be prepared to justify the withdrawal by meeting two requirements:

(1) are the criteria used to justify the withdrawal job related and consistent with business necessity; and

(2) would the applicant be unable to perform the job's essential functions even with reasonable accommodation.

Maintaining an Employee's Medical Records. Generally, if SWT obtains medical information on an employee, it has an obligation to keep that information confidential. This requirement includes the obligation to keep the information in a file separate from the employee's regular personnel file.

Releasing an Employee's Medical Records to Third Parties. Five exceptions exist to the rule that employers must keep medical information confidential.

(1) Supervisors can be told of an employee's work restrictions and job accommodations.

(2) First aid personnel may be informed about an employee's disability when called upon to render emergency treatment.

(3) Government investigators may be informed when conducting an investigation into ADA compliance.

(4) State workers' compensation officials may be given medical information in accordance with Texas law.

(5) Insurance companies may be provided with medical information when the companies require medical information in connection with the employee's health or life insurance.