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  • #16
    Originally posted by ElleMD
    2. The health information does not have to be common knowledge. HIPAA only protects information obtained through the administration of a health care plan. The company couldn't look through the claims data, see that she saw an oncologist on such and such date and share with others that she has cancer. However, discussing with someone outside the company behavior that is occurring inside the company is not protected. It may be unprofessional, but it is legal.
    So you agree or disagree that if this employer discussed an this person health information without the employees approval in writing that they could or could not have a case against the employer? Or does it depend on many variables not known?

    Just from personal experience at a large company, I have seen this a few times where a supervisor "spilled the beans" on a health care issue in front of other co-workers and a suit was filed, the company ended up settiling, firing the supervisor and handing out an undisclosed amount of money in damages.

    Which relates to the above in a way that even though this isn't a "win"..... as far as "justice" is concerned it is a "win".

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    • #17
      If the information was NOT protected information under HIPAA or the ADA (one, the other or both) then the employer can discuss it with anyone they like and the employee has no recourse.
      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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      • #18
        Originally posted by ElleMD
        I am speaking of court recognized sucesses. There has not ever been a definitive court decision that held the employer legally responsible for a truthful reference.

        Since a settlement to make the person drop the claim has no bearing on whether or not there is any merit to the suit, and an employee could bring a suit and the employer settle even if the employer was 100% in the right or if the employer only provided dates, title and salary, it really isn't fair to say nuetral references are best. In fact, there have been cases where just the opposite was true. The employer gave a positive reference and the person had been terminated for cause that presented a problem to the new employer. The new employer sued the old one for providing false information.
        I understand, but I am simply stating that it is far too narrow a definition of "success." Very few lawsuits make it to trial and even fewer go forward in the appellate process wherein they are reviewed and a precedent-setting decision is rendered by the Court. If a former employee files suit, whether meritorious or not, and receives a financial settlement, then there is no plaintiff-lawyer or layperson I am aware of that would not consider that successful.

        I am unfamiliar with any such cases you made reference to, but would intereested in the fact-patterns because I am willing to wager that they are distinguishable from the hypothetical situation wherein the employer simply provides a neutral (e.g., dates of employment) reference. Rather, these cases are probably more analogous to your original opinion, which I agree with, wherein the "positive reference" was not truthful.

        IMHO, there can be no liability to an employer who provides only confirmation that the person worked there and dates of employment.
        Last edited by rjc; 09-14-2006, 05:32 AM.

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        • #19
          Originally posted by Reagent
          So you agree or disagree that if this employer discussed an this person health information without the employees approval in writing that they could or could not have a case against the employer? Or does it depend on many variables not known?

          Just from personal experience at a large company, I have seen this a few times where a supervisor "spilled the beans" on a health care issue in front of other co-workers and a suit was filed, the company ended up settiling, firing the supervisor and handing out an undisclosed amount of money in damages.

          Which relates to the above in a way that even though this isn't a "win"..... as far as "justice" is concerned it is a "win".
          As long as the information doesn't come from the adminstration of the health care plan, and isn't protected by law, the employee's authorization is not needed. They could post it on a bulletin board if they wanted to.

          Whether the employer decides that this is a breach of company policy is a completely separate matter and really only applies to the situation at that company at that time. To suggest that all or even a significant number of employers would fire a supervisor for sharing medical information that was not protected by law, and then opt to settle monetarily with the employee rather than defend the claim, is simply stretching the truth. Without knowing the details, I can't really comment on the situation you know of, but what they chose to do has no bearing on what any other employer will do. It really has no bearing on what the law says or what is "just". Is it just to the supervisor who was fired for acting within the law? Or the employer who had to pay the employer rather than defend a claim that didn't have merit but would cost money and resources to defend? Maybe, maybe not. Depends on what side of the equation you are on.
          I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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