Medical Info in HR File?

We have always been diligent about keeping information regarding medical conditions, ADA accommodation, FMLA leave etc. out of the "public" personnel file, and stressed to supervisors not to even mention these things in performance evaluations.
However, we now have a situation where an employee who is bipolar and who has had FMLA leave for this conditon in the past is insisting on including a note from her doctor as part of her response to an evaluation where she was rated as needing improvement in some areas. (Our policy allows for employee responses to be included with performance evaluations). The note says that she is being treated for biopolar disorder and that in the doctor's opinion her performance deficiencies are due to her illness and not irresponsibility or lack of talent. The employee also makes reference in her responsive comments to the fact that she has a chronic health condition, had debated again taking time off but wanted to keep working, and feels she is being "penalized" for this decision.

We evaluate on performance, and will stick to that, but do we need to include these comments peppered with medical information in her main personnel file? Besides the confidentiality, I am concerned that if she applied for another job or promotion and didn't get it, she could now claim that it was based on disability rather than performance because it is there for the world to see.
If we do put it in there, I want her to sign some type of disclaimer that she was advised it was confidential and is aware that this is public information. Literally, because as a government agency all of our employee's personnel files are public record.


  • 4 Comments sorted by Votes Date Added
  • I would not include it. Maybe, after you tell her that the information will REALLY be public information, to be read by her neighbor or a newspaper reporter, she won't want it there either.
  • At first I thought include it but with a disclaimer from her attached. But, I agree with the gentleman from California. The ADA is very specific on this point and neither she nor her doctor have trump-authority over the ADA.

    The larger issue here, however, is that which she raises. Both she and the doctor may be correct in their assertion that this is not a simple failure to perform issue and is indeed medically based. Which drills even further down to the possibility that she is not able to perform the duties of the job with or without an accommodation. Of course the doctor's note is not an accommodation or a ticket to non-performance. Bi-polar disorder does not excuse inability to perform.
  • Thanks for your thoughts. We know that she is getting perilously close to stating that she can't do certain aspects of her job. She may be painting herself in a corner on that one.

    Does anyone know where in the ADA or regulations is the specific language requiring medical information to be kept separately? There is language saying that results of required physicals must be kept separate, but is there something more specific re: all medical informaiton?
  • I am not that familiar with the laws governing the public sector or the laws in your state I would seek legal advice (HIPPA, ADA, PUBLIC RECORD, FMLA, etc.). Initial gut reaction is she is setting you up for a lawsuit. Perhaps it was when I read “…performance deficiencies are due to her illness…chronic health condition …being penalized...had debated again taking time off” These buzz words suggest to me that she is saying help I am disabled you need to accommodate. Penalized=retaliation? By not following your policy of allowing responses (rebuttal) just not hers. Just a little food for thought in case you haven’t considered all this allready. It is Friday afternoon and after the week I have had maybe I am just paranoid, time for a cold one.
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