Health info in term file?

Squishypig

Just a quick question. Currently I have employee's health information in a seaparate file. I also have benefit info in another file (both are separate from main personnel file). Could I collapse the health and benefit information into the main term file when an employee terminates? I did this at my previous job and it worked well since all of the employee's information was in the same place if it was needed. What about the implications if we decide to rehire in the future?

bsa

Filing is not my forte' but I think you plan might work just fine. Maybe put a colored paper divider between the types of files or a rubber band around one section, and then if you rehire someone split the files again. - - - Uh Oh, I smell a trap ... if the files were ever needed for legal action, they would be in the same place, leading someone to believe that medical information could have been used to make an employment decision! What say attorneys?? How could she prove the files were separate until termination?

Dianna

Interestingly enough, we posed the exact same question to our employment law attorney, and he wrote back the following:

"Your third question related to merging employees' separate files upon their termination. Merging the files is permitted, but not advisable. First, keeping the files separately even after the employee is terminated would remove the need to prove that the files were separate when the employee was still employed. Second, in the event that a former employee applies for rehire but is denied, that former employee might argue that the presence of medical records in his or her general personnel file influenced the decision not to rehire him or her. Thus, there is some risk involved in merging the files even after termination. If you do still wish to merge the files, we strongly recommend including a memo in each merged file which lists the documents that were kept separately the date the files were merged."

We asked the question due to storage space, and decided to keep the files as is. Hope this helps.

Gillian

The attorney response is perfectly logical from a legal perspective which is to minimize risk to zero. In the meantime you will do more work and require twice the filing space. Evaluate the risk of getting into trouble because you have a merged file for terminated employees, further that someone would ask if you had unmerged files and then merged them. I think that this risk is almost zero so I opt for merging them, doing less work and having more filing space.

Carol CA

Our attorney at our corporate offices said No,No,No. Do not merge the files. You should always keep the medical file separate from the personnel file - even after termination. Better safe than sorry.

Paul in Cannon Beach

I really get frustrated with this idea of seperate files for medical info. It seems to naive to think that a seperate file someohow would keep a supervisor from discriminating against promoting an employee based on medical reasons. All we have done is create unneeded complexity to keep lawyers happy temporarily. Am I missing something?

Ok, I am venting but I resent the extra work and I resent not the complexity of multiple files, merging, not merging, etc...

Sometimes on a Friday afternoon when no one is around I secretly place an employees medical information in their employee file just for a minute. Then I take it out and put it in its seperate location.

Just kidding...

[email]paulknoch@hotmail.com[/email]

System

x:7


Christy Reeder
Website Managing Editor
[url]www.HRhero.com[/url]

Squishypig

[font size="1" color="#FF0000"]LAST EDITED ON 04-09-02 AT 01:09PM (CST)[/font][p]I had to laugh out loud when I read that Paul!!! We HR professionals know how to get crazy!!! No one else gets HR humor...

Paul

Paul, I have gone through a couple of DoL investigations in my career and so far (knock on wood) we have come out squeaky clean. I put this qualifier up front to let you know that I am speaking from experience in this matter.

I understand the frustration, but I never want to be in a situation where I am being deposed by an attorney and he asks, do you make a habit of combining medical information in your personnel files? The answer is an obvious "NO". However, his follow-up question will be "Have you ever combined medical information in your personnel files?". And your answer will be......?

We have to face one fact. We live in a litigious society and we have to protect our company's interests with this in mind (Risk Management). Yes, it is a hassle. Yes it takes (A LITTLE) more file space. But also, YES it does minimize the risk to our company. That is an intergral part of our job, and a challenge that we must rise to, and face, each day.

Good luck.

Gillian

Well, this thread gets a little controversial. Mine was the post that stated that I opted for merging the files after termination and I will stick with that. I agree that one of our roles is risk management but it is also to evaluate what is best for our organization and to recognize that the role of an attorney is different than ours. Attorney advice is just that, advice, and we should evaluate it to see if it makes sense for us, because our evaluation must include not only risk but efficiency, culture of our organization, cost etc. etc. etc. When we get advice from others we generally don't accept it at face value without questioning. Attorney advice is valuable but is not the end all to everything.

Lori B

I agree with Gillian. I am both an attorney and in charge of HR for my company so I think I can weigh in on this topic from both perspectives. You always need to do a risk assessment of what is the best practice vs. what is realistic for your company. While I would prefer to keep the medical separate after term, our risk assessment led us to merge the files. Here is our practice: our medical files are red file folders that are clearly labled "confidential." For active ees, they are stored in a separate area from active personnel files. When the ee terminates, we insert the red folder inside the normal ee personnel file. If a mgr ever requests to see a file, we simply remove the red file before handing over the goods. If we ever receive a subpoena or other type of request for employment records, we removed the red folder before copying. All such responses must be cleared through me to avoid inadvertent productions of this material by my staff. Hope it helps. It is a good question and one that HR depts should be thinking about. Lori

Anita

I also keep my files seperate, until the time I get ready to send them to microfiche. I have a very small office and don't have the room to keep indefinite files. I usually don't send them to be microficed until the employee has been gone 3 years!

Paul in Cannon Beach

Despite my attempt at humor this is a serious subject. What frustrates me though is that I would rather spend my energy enforcing the spirit of our laws than the letter.

I think most of the laws we deal with regularly (FMLA, COBRA,harrassment, etc) are wonderful. They protect people and make life generally better. But when it gets down to color codes and rubber bands it seems we have gotten off track.

I try to do my job well every day. I bust my rear advocating for my staff and helping our organization act ethically and responsibally. So I get upset when I am told it could all go down the drain because a medical form was improperly filed. Sometimes I think we scare ourselves silly in HR listening to lawyers (ok, now Im really venting)

I am not advocating being irresponsible, but I like to think that at the end of the day, the good guy is going to win.

Does anyone else feel this way? I guess it doesn't change things but it might make me feel better.

[email]paulknoch@hotmail.com[/email]

Carol CA

I agree with you, Paul, that hopefully at the end of the day the "good guy" will win. Especially if that good guy can show he made "good faith efforts" to do the right thing. Sometimes those good faith efforts take a little longer than the quick short cut, but in the end it is worth it.

Hang in there!

Margaret Morford

Paul,

I agree with what you say. We hire attorneys to protect us and they do a great job. But recognize that we ask them, "What do we need to do so we don't get sued?" The answer to that question is not always compatible with, "What kind of flexibility do we need to run our business and/or meet the needs of our employees?" Our attorneys are not responsible for answering that, we are. One of the reasons HR is viewed as a "necessary evil" in a lot of companies is that we don't think like business people. Business people evaluate risks and then determine a course of action. HR people should do the same. As you said, we need to be prudent, but not risk averse.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Paul in Cannon Beach

Thanks for the encouraging words... that was a good way to end a long, and difficult week.

Hey, its friday, time to mingle some files.. just kidding.

[email]paulknoch@hotmail.com[/email]

SandiF

I laughed out loud also. And I agree with what you say about doing a good job, making a good faith effort, etc. All these laws are frustrating because try as you might, there will come a time when we make a mistake; a mistake, not something done with malicious intent. I keep my files separate. I'm glad you vented - no one else really understands except people who work in HR every day.
Have a good week.

Don D

>
>I understand the frustration, but I never want to be in a situation
>where I am being deposed by an attorney and he asks, do you make a
>habit of combining medical information in your personnel files? The
>answer is an obvious "NO". However, his follow-up question will be
>"Have you ever combined medical information in your personnel files?".
> And your answer will be......?
>
I too understand the seriousness of the law and the seriousness of what we do on a daily basis. Having said that, I absolutely loved Paul's response. After doing this for 33 years, I refuse to take myself too seriously. If I were asked that question in a deposition, my answer would be a statement of our policy, "Our policy is to follow the law in not placing medical information in the employee's personnel file." If he asked a followup question like that I would answer, "It is our policy and practice to keep separate medical and personnel files, and, no, we do not merge these files and our files have not been merged since the law went into effect."

Somehow I have a sneaking suspicion that Paul can handle the question and followup in deposition.

Don D

>Sometimes on a Friday afternoon when no one is around I secretly place
>an employees medical information in their employee file just for a
>minute. Then I take it out and put it in its seperate location.
>
>Just kidding...
>
>paulknoch@hotmail.com


Paul, you are a hoot! I think I will secretly try this myself.

VanEngen

Don't file them together. Depending on what state you're in, you probably need to keep those files longer than you have to keep personnel records.