Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“My supervisor called me into her office and stated that she was concerned that I could not perform my duties while taking my medications as prescribed. I am a medical lab technician. It finally came to the point where I felt that I had to give her a list of my meds or be terminated. I had nothing to hide; so I gave her a list off all my medicines. Several minutes later she called me into her office again. She stated that “they” were concerned about my ability to perform because of several of my prescribed drugs. I had to get letters from my physicians stating which drugs they prescribed and if it affected me to the point at which I could or could not perform my job duties. I feel like I was put in a very tough position. Turn over the information or be terminated. The least they could have done is given me a urine drug screen and then discussed the situation with me.
I spoke with the head of Human Resources and he feels that I gave that information to them of my own free will. I feel I had to give it to them or lose my position. Were any of my HIPAA rights violated? One of my doctors thinks that is the case. If so I will seek the advice of an attorney; but I need to know where to start. I live in North Carolina.”There are a number of issues at play here, and a number of questions. Foremost, I have to ask: How did your employer come to question you about your medications in the first place? Was there something in your behavior or job performance that caused them to question your ability to perform your job?
Question: Generally speaking, when it comes to a situation like this in which the employer pressures you to turn over information when you have no obligation to do so, it is really important to stand your ground. They may bully and bluster, but in most cases a half-way intelligent employer will know they don’t have a leg to stand on. Ironically though, by caving in and telling them about your current medical status, any adverse actions they take against you may well give you a stronger cause of action than if they’d fired you for not telling.But first things first: How did this become an issue? In my experience, it’s not that common for employers to begin asking questions unless they see some kind of changes in behavior that concerns them. Of course, it is also possible that they routinely snoop through medical information provided to them by your health insurance provider. Given the complex relationships between employers and the health insurance providers they utilize to deliver health coverage to employees, it’s possible that your company’s human resources department might have some level of access to your medical information. Some level of access can be permissible under the privacy provisions of the federal regulations that come out of HIPAA, the Health Insurance Portability and Accountability Act. But what they can do with that information is a separate question.
If they did pressure you into revealing your private medical information, that isn’t itself a violation of HIPAA, because HIPAA is about putting restrictions on what information healthcare providers can use and/or release. If you were the one who was bullied into turning over information, you will need to turn to other laws for protections, such as various state employee rights protections and the Americans with Disabilities Act (ADA). If they’re using your medical treatment information to in anyway discriminate against you, the ADA may give you the ability to sue. But the ADA is a complicated law and you’d have to spend a lot of time talking with a lawyer who specializes in ADA cases to know your chances of prevailing.How they came to question whether you were “on something” is certainly a question worth exploring, because that may well be the key to whether their inquiries were legitimate, or whether they were “fishing” based upon some ill-gotten information. Even if they obtained some information about your current medical treatments, whether through coercion or through some combination of permissible and impermissible means, there is then a larger legal question of whether they can use that information to discriminate against you, harass you, or otherwise subject you to inappropriate scrutiny.
Answer:
As with many legal issues, the devil is in the details, and you’re going to need to explore these issues with an attorney who specializes in employment discrimination law. You should contact your local city or county bar association and ask if they have a referral service who can point you to attorneys who specialize in representing employees in actions against employers. You may well have a variety of causes of action under both state and federal healthcare privacy laws as well as state employment law and federal laws like the ADA.
