Subpoena for employment file

martman99

Ex-employee is involved in litigation concerning an injury which does not involve this employer. Subpoena received from defendant's attorney requesting copy of employee's file. Not able to contact former employee or former employee's attorney in the matter. Must I release it, should I release it, does HIPAA apply since there is some PHI and I do not have a waiver or is the subpoena sufficient to constitute a court order for which I must comply with the request?

Any thoughts?

THANKS

pork1

MARTMAN99: Good question for your corporate attorney; however, for sure unless the subpoena specifically identifies medical information which should not be in the personnel file, I would not send HIPAA related medical information. Secondly, I would go through the personnel file and remove any interoffice communication, that is not typically a part of the personnel file. In our files the application, copy of I-9 (which does not have to be in there but that was our procedure before we decided to place all I-9s into a seperate alpha file system), transfers, wage increases, evaluations, demotions, and letters of instruction for behavioral changes would be what I would provide. If subpeona is signed sealed I am sure your attorney will say yes and advise to execute, accordingly. His fee will be a minimum of 1/2 of a billable hour. This is what I do, and it has worked for me.

PORK

twochr

We receive these types of subpoenas and we give them to our legal department. So far, they have requested us to copy the entire file to be sent to the requesting attorney. HIPAA clearly states that if an authority requires you to turn over the information, it is not a violation of the privacy act. We leave it up to our legal department to decide. You should check with your legal department and if you don't have one, please check with an outside ERISA attorney.

Don D

But, ultimately, or at the end of the day, whichever comes first, yes, you will be complying with the subpoena. You asked if 'the subpoena is sufficient to constitute a court order'? That's exactly what a subpoena is.