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It’s unlikely that HIPAA would apply to these situations. While employers should consult their attorneys for situation-specific legal guidance, generally speaking, not all medical information falls under HIPAA. In addition, not all employers are considered to be covered entities as defined under HIPAA. In order for medical information to be HIPAA-protected, it must be considered individually identifiable Protected Health Information (PHI). Typically covered entities are medical plans, health care providers and health care clearinghouses. Since medical information that is protected must be both individually identifiable PHI and information that falls under the administration of a covered plan or entity, employers that are not health care providers or clearinghouses are probably not covered entities. Whether information in question is HIPAA-covered will be best determined based on whether the information is related to, or derived from, administration of the employer’s health care plan(s).
Where HIPAA may not apply to medical information, FMLA and ADA have their own standards for maintaining the confidentiality of related records. Fortunately, both laws and enforcement agencies recognize the potential for interplay with one another and generally mirror one another. Both laws restrict the use and disclosure of information obtained during the course of compliance or administration with either law to emergency medical personnel, members of management (only those who need to know as part of job-modification procedures) and government agencies such as workers’ compensation administrators or those responsible for enforcement. These requirements can be found under FMLA regulations
29 CFR 825.500(g)(1) through (3) and ADA section
In summary, if during their conversation about the upcoming long weekend Roger discloses to his manager that his wife is pregnant, HIPAA does not apply. And Sally’s sour stomach causing her to leave early from work and request time off under the company attendance policy isn’t a HIPAA matter either. But if Wanda, the company CHRO, reads in the company benefits plan quarterly report that Peter has pancreatitis, then Wanda ought to know this information is HIPAA-protected.
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