Confidentiality of FMLA records

maverick

I am an EEO officer in a public agency. I am in the process of responding to a charge of discrimiantion from a state agency on behalf of a former employee. The former employee is alleging discrimination based on a disability which is tied to the FMLA leave which was granted to the employee. I need to see the Certification of Health Care Provider and the Employer's Response to the employee in order to factually respond to the charge. The HR Director who is in charge of benefits states that he cannot release the information because of HIPAA. I disagree. I do not believe that HIPAA overrides the confidentialy provisions for medical records as stated in the regulations for the FMLA and ADA which allow the records to be viewed by certain persons in the case of an investigation. Question: Do the confidentiality provisions of HIPAA override the confidentiality provisions of the FMLA and ADA? I would appreciate your views on this question and any legal citation for your response.

SMace

There has go to be more to this story. The HR Director, who I would assume is resposible for EEO, will not give you the necessary info to reply to a charge?

Are you sure you need that info?

stilldazed

I would agree with SMace. I think there is something else going on. Technically, HIPAA does not prevent a employer from conducting necessary business as long as privacy/confidentiality is respected. An employer responding to a legal challenge/EEO charge has to conduct that business, so HIPAA would not technically prevent the response but would require that as much privacy as possible be maintained (i.e., disclose only as necessary, written documentation/response, possibly notice to EE that disclosure will occur, etc.). Do you have legal counsel assisting with the charge or a subpeona? Subpoenas are a valid basis for releasing medical info to other parties and will state so in the subpoena.

Do you and the HR rep work well together? My suspicion is that there is a turf mgmt issue going on.

jmcaa

If you are responding to a charge from a former employee, who don't you get an Authorization from that employee to release their information to you? The HR person is covered because they have the release.