Employers Disclosing Reason for Employee's Leave

Submission Date:

Thursday, March 21, 2024

Question:

Are there any laws around a supervisor or manager telling others the reason for an employee being out on leave? Does the answer change if the employee isn't using sick time, but [has] disclosed why they were unavailable for additional hours during non-contract time?

Answer:

Here are the state and federal laws specifically barring an employer from disclosing why an employee is out on sick or personal leave.[1]

• New York State Human Rights Law (NYSHRL), whose regulations require that employers maintain the confidentiality of medical information disclosed as part of requesting disability accommodations. 
• The New York State Workers’ Compensation Law, which requires employers maintain the confidentiality of medical records used to assess benefit claims.
• The Americans with Disabilities Act (“ADA”), which imposes very strict rules for handling information obtained through post-offer medical examinations and inquiries. 
• The Health Insurance Portability and Accountability Act (“HIPAA”), which requires employers to protect the privacy of employees' personal health-related information in relation to health insurance benefits.
• The Genetic Information Nondiscrimination Act (“GINA”), which prohibits employers from requesting or using employees’ genetic information.
• The Family and Medical Leave Act (“FMLA”), which requires that all records and documents relating to medical histories of employees or employees' family members created for purposes of FMLA be kept confidential.

This sounds straightforward, but of course, it isn’t, since only the first two laws (NYSHRL and Workers’ Compensation) apply to all employers in New York State, and not all disclosures related to sick or personal leave are “medical information” or private health records.

Here are some examples of disclosures that could be forbidden by law, if the law applies to the employee in question.

• A library employee temporarily reduces their hours using FMLA leave to address a personal health issue; when the library’s board of trustees approves a budget item to hire a temp to fill the extra hours, a board member says at an open meeting: “This is to help with consistent service as [NAME] deals with [DIAGNOSIS].”
• A museum employee is absent from work as a disability accommodation under the ADA, and the co-workers covering her shift are told that the schedule change “is because of [NAME] has [DIAGNOSIS].”
• A warehouse employee who was injured on the job is on leave covered by Workers’ Compensation, and his supervisor schedules a time to go over the accident and review safety precautions with co-workers.
• An office employee who needs disability accommodation provides proof from a treating physician and the documentation is left on the table in the break room for all to see.

Here are some things that could be gross violations of privacy, but without additional factors, would not be legal violations.

• An employee is out on paid sick leave, and although an employer can’t require confidential medical information to use paid sick leave, the employee lets his supervisor know that he has the flu; the supervisor then tells everyone else they work with to “be on the lookout for flu symptoms, since [NAME] is out with a pretty bad flu.”
• An employee is out on New York State paid family medical leave (not FMLA leave, due to the size of the employer) to help her spouse with a serious medical issue. Although the employee has not shared the reason for the leave with co-workers, the HR director organizes signatures on a sympathy card that alludes to the reason for the leave.
• An employee is on discretionary unpaid personal leave to help out a friend who is ill and the reason for the leave is referenced throughout the workplace frequently.
• An employee tells a coworker outside of work time that they can’t take on more hours due to issues with anxiety and depression, and the co-worker shares that information with colleagues.[2]

That said, the answer to this question really is: if an employee is concerned that their information may have been improperly shared or used, or if an employer is concerned about properly safeguarding employee information, consult an HR specialist or at attorney to confirm compliance. 

For employees, there are often legal clinics that can address a question of this nature; check with your county bar association. For employers, there is “Ask the Lawyer” and your local employment and labor law attorneys.

This is a good one to get right, from the start, for everybody. Thank you for trusting me with this question.

Tag:

Employee Rights, Privacy, PTO, Vacation, and Leave, ADA, HIPAA