By Sherwood Ross, Reuters, 5/26/02

There is a growing possibility that prying eyes at work will see your confidential medical files and may not keep what they learn to themselves, workplace privacy experts said.

"Employers are under more competitive pressure than they used to be and the cost of medical care keeps going up, so they frequently try to find out which employees are medical liabilities," said Lewis Maltby, president of the National Workrights Institute, a Princeton, N.J.-based nonprofit organization.

Corporate human resources officials "know they have an obligation to keep medical information confidential and they generally do," Maltby said.

But if they are pressured to reveal "which employees have expensive diseases," such as AIDS, "the HR person will put their own career in jeopardy by not telling the employer," he added.

Frederick Lane, a Burlington, Vt., attorney and author of the soon to be released "The Naked Employee: How Technology is Compromising Workplace Privacy" (Amacom), says it's "fairly difficult to find out if someone has been in your files without your permission," and the remedies are poor.

Employees who have sued over invasion of privacy have discovered "it is not a powerful [legal] tool, and you have to show some strong damages to make it worthwhile," Lane said.

"If you actually get fired because of something found in your file then you may have recourse to the Americans with Disabilities Act or a claim with the Equal Employment Opportunity Commission," he said.

Both Lane and Katie Corrigan, legislative counsel for the American Civil Liberties Union in Washington, D.C., said genetic testing makes it increasingly possible to project which employees may develop a particular disease.

"There is no adequate check and balance on employers' authority to use and disclose personal medical information," Corrigan warned. "There are new technologies that challenge employees' privacy more and more. Technology is outpacing the law."

One employee in five — or more than 5 million workers — "believes that their employers inappropriately shared their personal health information with others at work," Maltby's National Workrights Institute has estimated.

Many employees do not know what, if anything, they need to divulge about an illness to their employers.

When asked by a supervisor, "Aren't you coming in today?" and "What's wrong with you?" people often answer both questions — even though the latter violates their right to privacy.

An appropriate answer that defends your privacy, according to Dr. Presley Reed of Boulder, Colo. is: "I prefer not to talk to you about my medical condition, but if you want me to discuss it in confidence with someone in human resources, I will."

All your supervisor needs to know, Reed said, "is if you're able to do your job or not, and when you and your doctor expect you'll be able to return to work."

Reed is chairman and chief executive of The Reed Group, publishers of the 2,685-page "The Medical Disability Advisor," the bible of the medical absence management industry.

Most big companies have a written policy about what is expected of an employee who is injured or ill. A company doctor usually will honor a letter from the employee's private physician stating whether they can return to work, Reed said.

Neither the company doctor nor the human resources professional may inform your manager or employer about the nature of an illness that prevents you from working.

The Family Medical Leave Act requires employers with 50 employees or more to provide up to 12 weeks of unpaid job-protected leave annually for workers to attend to a serious medical condition or that of a close relative.

The law does not require employees to disclose specifics of a medical condition. An employee who seeks to obtain workers' compensation, however, may have to divulge certain medical information to an employer, Reed said.

The average employer spends about $4,400 annually per employee for health care, but according to one recent study, spends even more — $5,700, per employee — due to absenteeism, Reed said. el.5l Some companies hire medical firms such as the Reed Group to take the sick-day call from the employee as well as to review the medical information provided. The firm advises the employer's management, human resources, and payroll as to the length of time the person is expected to be absent.

This strategy creates a "buffer" between the employee's sensitive medical information and the company, yet ensures that the employee's absence is necessary and appropriate, Reed said.