Occasionally, unions need access to employee medical information — and in most cases, unions have the legal right to that data. That's because the Health Insurance Portability and Accountability Act of 1996, otherwise known as HIPAA, generally does not apply to medical records that are maintained by an employer.
HIPAA helps keep patients' medical information safe. The act focuses on health care providers such as hospitals, clinics, doctors or health plans, which it calls "covered entities." In most cases, employers are not considered covered entities because they are not a hospital or a health care provider. In cases where an employer is a hospital or health care provider, however, HIPAA could apply if the union is seeking protected health information.
In all cases that involve a union requesting employee medical information, employers must protect their employees' confidentiality as best they can, even if they are ultimately obligated to share the sensitive information.
Reasons for Accessing Employee Medical Information
Unions may want to access employee medical information on behalf of their members for a variety of reasons. These reasons include:
- Grievances. A union might request an employee's medical information related to a grievance that person has reported. The union could also request other employees' medical information related to that grievance.
Collective bargaining. A union may request health plan claim information during collective bargaining.
Disciplinary action. A union could request medical information in the case of a bargaining unit employee who faces disciplinary action for inadequate or improper patient care in a health care setting.
In one hypothetical example, a union worker hurt his back at work. He went to therapy, and his doctor released him back to work — but with a weight-lifting restriction for a short period of time. The employer refused to take the worker back, saying there was no lighter-duty work that the employee could perform. The union filed a grievance on the worker's behalf, noting that others in similar situations had returned to work on light duty. The union asked to see those workers' medical records to help their case.
The fictional company in question is not a covered entity, so HIPAA does not apply. The National Labor Relations Board (NLRB) mandates that, while employers do need to protect employee confidentiality, unions also have a right to information they need to investigate grievances. In this case, the employer may have to turn over the medical information, though they could redact all information that identified individual employees.
Still, the NLRB mandate is not absolute. In Detroit Edison Company v. NLRB, the Supreme Court recognized the balance required between a union's right to information and an employer's or employee's right to confidentiality. In that legal case, the union had sought to obtain questions and results from an employee's psychological aptitude test. The court ultimately declined to make the employer hand over the medical information, because the need for confidentiality outweighed the union's need for the info.
Tips for Smooth Medical Information Requests
Employers cannot simply refuse a union's request for employee medical information — they have to work with the union to find reasonable alternatives that protect employee confidentiality while also giving the union the information it needs.
One way for unions to help ensure that any requests proceed smoothly is to obtain a written release of medical records from the employee in question. Another possibility is to agree to limit access to the records so that, for example, only the people who process a grievance will be able to see the file, and no one else.
Eliminating all patient-identifying information is another way to facilitate requests for medical information. For instance, if a union wants medical information when investigating an employee disciplinary case, receiving redacted information is typically sufficient.
At the end of the day, the employers who protect their employees' personal health information and the unions who advocate for their members both have people's well-being in mind. Unions that need to access medical information can ease the process by always working to negotiate with employers.
With 15 years' experience writing for publications including The Wall Street Journal, Barron's, The Christian Science Monitor and Newsday—Deborah Blumberg specializes in business and finance and health and wellness. She writes about topics including corporate communications, financial markets, real estate, renewable energy, cancer, health education, nutrition, supplements, the microbiome and functional medicine. She was a Knight Center fellow and a Donald W. Reynolds National Center for Business Journalism fellow. Her time working in marketing and communications at JPMorgan Chase taught her how to best tell a company's story. She's adept at turning complex ideas into compelling copy. She's also an officer of the American Society of Journalists and Authors (ASJA) and a Women in the Visual and Literary Arts board member, and she is fluent in Spanish.