Need to Know

During a staff meeting, a manager told eight of Scott Holtrey’s coworkers and subordinates about Holtrey’s genito-urinary system condition, which qualified him for Family and Medical Leave Act (FMLA) leave. Holtrey v. Collier Cnty Bd. of Cnty Comm’rs (M.D. Fla. 2017). These eight immediately began asking Holtrey for details about his condition, making jokes about it, and performing obscene gestures to illustrate their jokes. Holtrey complained but the employer did not remedy the situation.

Even though courts disagree whether the FMLA provides individuals a private right of action to bring a claim for disclosure of confidential medical records, the Holtrey court decided to allow Holtrey’s claims of interference with FMLA confidentiality and retaliation under the FMLA to move forward against the employer. A bit of caution could have prevented the employer from becoming embroiled in litigation.

The Family and Medical Leave Act requires employers to keep medical records created for the purposes of the Act confidential. (“Records and documents relating to certifications, recertifications or medical histories of employees or employees’ family members, created for purposes of FMLA, shall be maintained as confidential medical records in separate files/records from the usual personnel files”). Only individuals with a need to know should be privy to the underlying condition that requires FMLA leave. So who needs to know? Under the Act, the following individuals may have a need to know limited information about the employee’s condition:

(1) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations;

(2) First aid and safety personnel may be informed (when appropriate) if the employee’s physical or medical condition might require emergency treatment; and

(3) Government officials investigating compliance with FMLA (or other laws) shall be provided relevant information upon request.

As a rule, no one outside the human resources department should be told any details of the employee’s diagnosis or prognosis. As illustrated by the Holtrey case, the potential for claims of violation of FMLA confidentiality and FMLA retaliation should suffice to keep employers from telling coworkers and subordinates any information about the employee’s condition.