Laws surrounding an applicant’s medical records can be confusing. Employers must know how to appropriately approach someone’s medical history. Medical records are very private pieces of information and it’s important employers and employees know what can and what cannot be asked for legally. If you are having issues knowing if what your prospective employer has asked is legal or not, talk with one of our attorneys at California Labor Law Employment Attorneys Group.
Can Employers Ask for an Applicant’s Medical Records?
Medical records are very private information because they can contain someone’s laboratory test results, medications prescribed, results of medical procedures, results in genetic testing, and participation in medical research project. The Health Insurance Portability and Accountability Act (HIPAA) is a piece of legislation regarding healthcare transactions. The HIPAA Privacy Rule protects the privacy of a patient’s protected health information (PHI). PHI includes a patient’s name, address, date of birth, social security number, physical and mental health condition, care provided to an individual, and any information regarding the payments of health care. HIPAA makes sure this information is physically and electronically secured. If you have more questions regarding HIPAA, do not hesitate to come in to our office and talk with one of our HIPAA attorneys today to learn the details behind this important privacy act.
The Americans with Disabilities Act (ADA) also protects some applicants from their employers seeking medical records. According to the ADA, an employer can only ask disability related questions and require a medical exam after a job has been offered. They cannot ask this of prospective candidates who have not yet been offered a job. This combats any kind of disability discrimination. However, there are some questions that are permitted such as asking about an applicant’s ability to perform certain job functions, for example an employer mask ask if someone can lift a certain amount of pounds. They are also allowed to ask non-medical qualifications and skills, and they can ask an applicant to describe or demonstrate how they would perform certain tasks. If an employer requires a medical examination or asks disability questions after the employee has been offered a job and then chooses to reject the applicant, they must prove it is job related and consistent with business necessity. If this has happened to you, but you feel as if their reason was because they found out about a disability or history of a disability you may want to speak with one of our lawyers to see if you have a case against them.
What are California Background Check Laws?
If you are job applicant and your prospective employer requires a background check, under the Fair Credit Reporting Act (FCRA), they are not allowed to obtain medical records in that background check without authorization. Under the FCRA, an employer must provide a written notice to the applicant with a copy of their rights under the act. Both the employer and applicant must sign in order for an employer to conduct a background check. Medical history cannot be included in a background check unless consented to, so while it’s not illegal to obtain an applicant’s medical history if they consented to it, it is illegal if they did not. If your future employer obtained your medical records without your consent you may be eligible to file a lawsuit, and one of our employment attorneys can help you get started with this.
It should be noted that California law has adopted a ban-the-box law which prohibits inquiries about criminal history before offering a job. The California law is also broader than the FCRA in that it includes employers who conduct background checks themselves, not just third party entities. The notice required under state law is also slightly more extensive, and it must include a box for the employer to check if they want a copy of their background check as well, but an employer does not have to give you all the information uncovered from a background check, only the public information. There is also a seven year rule which means negative information reported on a background check is limited to seven years.
There are ways employers can obtain medical information about an applicant without your consent. This is if you have public medical information. A few examples would be through media stories. If you were in an accident or involved in a treatment study, this may be publically accessed information. Also, if you have publicly posted any medical information on social media, this is also a plane in which employers obtain any medical history you openly shared. Anything you choose to share publicly online is not protected.
How can an employer access my medical records?
There are definitely some exceptions under privacy laws when it comes to medical information. For instance, the HIPAA does not prohibit your employer from asking you for a doctor’s note if they need the information for administrative reasons like sick leave or workers’ compensation. Make notice that they cannot directly ask for information from your health care provider, but they can ask you to provide a doctor’s note. If you’ve voluntarily disclosed medical information to an employer, the standard is that this information should not be shared with anyone unless there is a justifiable business reason to do so.
Private medical records can stay private, but you must remember public medical records or public and anyone can have access to them if they just decide to do some digging. Also consent is a huge determinant in how medical records are approached in employment. Much of what is revealed is really up to your discretion, so be careful with what you disclose and agree to. However, if you have not agreed to disclose medical records and an employer has unlawfully obtained them, then it’s important to take legal action. If you’ve been asked for disability information or were required to take a medical exam before being offered the job, then this too has been an infringement on your rights. Do not let prospective employers take advantage of you or discriminate against you. You must protect yourself as a job competitive job applicant.
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If you are dealing with issues with your medical records and employment, let us help you navigate your legal rights. The California Labor Law Employment Attorneys Group wants you to stay competitive in this vicious job market. Discrimination based on medical records is never allowed, and you need to fight against employers that make decisions based on them, or illegally obtain your medical records without your consent. Speak with one of our attorneys for free to find out how you can combat illegal practices by employers. If we take on your case, we will not charge you anything, and only if we win will there be a small fee. It’s time for you to not let your medical history dictate your qualifications for a job.