The employees' quest for medical record privacy under the Family and Medical Leave Act.

• Author: Lee, Konrad S.

The passage of the Family and Medical Leave Act (FMLA) was a boon to many workers as it afforded them the opportunity to take up to twelve weeks of unpaid work leave to address serious personal and family medical situations. In order to exercise the right to personal medical leave, however, the FMLA requires an employee to reveal to the employer sensitive personal medical record information. The release of this personal medical information invades the employee's privacy and subjects the employee to a risk of unauthorized disclosure to third parties, without materially assisting the employer in making a leave request decision. Consequently, Congress should amend the FMLA to only call for a statement from a medical doctor verifying that the employee has a "serious medical condition" as a condition of leave, thereby abandoning the current additional requirement that a physician provide the employer with the medical facts underlying the medical condition.

1. INTRODUCTION

   The ease with which strangers may access personal information about others through the internet and other electronic sources has resulted in the conclusion that meaningful individual privacy no longer exists. This is felt nowhere more acutely than with personal medical records. Indeed, according to a 1999 Harris Equifax survey, "over 80% of public respondents felt they had 'lost all control' over their personal [medical] information." (2) This problem has led important players in the health care industry to conclude medical record privacy protection is "non-existent." (3) In response to this concern, fifteen percent of Americans engage in privacy-protective behavior to shield themselves from unwanted disclosure of health information, including giving healthcare providers inaccurate information, paying out-of-pocket for medical care normally covered by insurance, doctor-hopping to avoid consolidation of records, or even avoiding healthcare altogether. (4)

   While this may work for some, federal and state statutes often compel employees to disclose personal medical records to an employer in order to exercise the right to a statutory benefit. This is true under the Americans with Disabilities Act (ADA) (5) and the Family and Medical Leave Act (FMLA). (6) While these statutes provide for protection of medical privacy in the workplace, public confidence in the security of the medical records disclosed by employees to employers is low. (7) Employees are justified in this disillusionment because once personal medical information is given to an employer, it is often released to third parties, and an employee may suffer negative personal consequences, which financial remedies do not adequately redress.

   The case of Doe v. United States Postal Service (8) illustrates this problem. John Doe, a maintenance worker for the United States Postal Service, missed several weeks of work due to an AIDS-related illness. (9) Doe's supervisor informed him that he would need to submit a medical certification form, filled out by his health care provider, certifying that he suffered from a "serious health condition" and "describe[ing] the medical facts which support [the] condition." (10) When Doe subsequently returned to work, he found that his previously unknown HIV status was known among his co-workers. (11)

   In order to protect his job, John Doe had to disclose personal medical records to his employer. The FMLA mandates that in order for an employee to obtain medical leave due to a serious health condition, the employee must reveal the "appropriate medical facts ... regarding the condition." (12) Congress designed the requirement with the intent of protecting an employer from potential abuse of leave by an employee not worthy of leave. (13)

   This Article argues that the requirement under [section] 2613(b)(3) that an employee disclose specific facts underlying medical conditions to an employer as a condition of obtaining FMLA leave goes too far and should be removed from the regulations for the following reasons. First, providing an employer with the personal medical facts that underlie a serious medical condition for FMLA leave is unnecessary because it serves no legitimate business purpose of the employer. Second, the medical information disclosure requirement of the FMLA places employees at unnecessary risk of adverse employment actions. Third, the benefits of disclosing the medical condition to the employer are outweighed by the risk of unnecessary or unauthorized release of medicals records to third parties, for which no adequate remedy exists. Fourth, disclosure requirements are unjustified under federal statutes governing privacy of personal medical records. Fifth, the disclosure requirements undermine the purposes of the FMLA.

   To illustrate these points, this Article proceeds in the following manner: Section II gives an overview of the FMLA; Section III discusses the specific problems with current FMLA medical disclosure requirements under 29 U.S.C. [section] 2613(a); and Section IV offers a recommended modification of the FMLA designed to protect employee privacy while furthering the purposes of the FMLA.

2. THE FAMILY AND MEDICAL LEAVE ACT

   1. The Purpose of the FMLA

      In the early 1990s, Congress concluded that "the United States ha[d] experienced a demographic revolution in the composition of the workforce, with profound consequences for the lives of working men and women and their families." (14) Indeed, over the preceding forty years the number of women in the workforce and the number of single parent households had increased dramatically. (15) A Senate report on the issue noted a more than 200% increase in the female civilian labor force since 1950. (16) In addition, Congress was concerned with "another dramatic demographic shift: the aging of the American population," recognizing that an estimated "20 to 25 percent of the more than 100 million American workers have some care giving responsibility for an older relative." (17) Congress also concluded that private employers had "failed to adequately respond to ... economic and social changes that ... intensified the tensions between work and family." (18)

      Following seven years of Congressional debate and two vetoes by previous presidents, President Clinton finally signed the FMLA on February 15, 1993.19 "Enactment of the FMLA was predicated on two overarching concerns--the needs of the American workforce, and the development of high-performance work organizations." (20) Congress intended for the FMLA to provide job security as well as a proper balance between work and family life for employees, resulting in increased worker productivity for employers. (21) Specifically, the FMLA entitled qualifying employees to twelve workweeks of unpaid family or medical leave in a twelve-month period with guaranteed job restoration upon return. (22) Qualifying employees need to have worked for a private employer of fifty or more employees for at least twelve months and 1,250 hours. (23) The employee must predicate the leave on either a serious health condition, (24) his own or that of a family member, (25) or on the birth, adoption, or placement of a child. (26) The FMLA guarantees continued health benefits during the leave, as well as the return of the employee's prior position upon the conclusion of leave. (27) Employers are not allowed to interfere with, restrain, or deny employees the ability to exercise their FMLA rights. (28) In order to qualify for medical leave under the FMLA, employees must submit evidence of a serious health condition, known as medical certification, to the employer. (29)

   2. The Medical Certification Requirements of the FMLA

      While its primary purpose is to assist the worker, the FMLA also seeks to protect employers from "employee abuse of [FMLA] leave provisions." (30) To this end, the FMLA permits employers to require employees to verify that the need for FMLA leave is legitimate. (31) When an employee requests FMLA leave due to a serious medical condition, an employee's healthcare provider must disclose, upon the employer's request, the category of serious health conditions to which the employee's condition belongs, its probable duration, and a description of "the medical facts which support the certification." (32) The Department of Labor developed Form WH-380, which requires the healthcare provider to furnish the employee's personal medical information. (33) If the employer determines the information provided is suspect, it may require, at its own expense, the employee to obtain a second opinion. (34) If both opinions differ, a binding third opinion from an agreed-upon health care provider may be required. (35) While envisioned as a voluntary form, because the employer will not grant the FMLA leave request without the form, the medical disclosure certification, or some version thereof, is de facto mandatory. (36)

3. THE FMLA'S REQUIREMENT THAT AN EMPLOYEE PROVIDE AN EMPLOYER WITH THE "MEDICAL FACTS" UNDERLYING A SERIOUS HEALTH CONDITION IN ORDER TO OBTAIN MEDICAL LEAVE IS UNWARRANTED

   While the FMLA is based upon sound principles, it is flawed because it requires an unnecessary over disclosure of an employee's personal medical information as a condition of obtaining leave. Indeed, the requirement does not benefit the employer and infringes upon the employee's rights in several important ways.

   1. Providing an Employer with the Personal Medical Facts that Underlie a Serious Medical Condition Is Unnecessary Because It Does Not Serve an Employer's Legitimate Business Purpose

      When an employee makes a request for personal medical leave pursuant to the FMLA, the employer must determine whether the request qualifies for leave because the employee has a serious medical condition. If the employer receives a report from a medical doctor showing that the employee does indeed have a serious medical condition, then the question is...