Medical Info in HR File?
Public Sector Texas
17 Posts
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.
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.
Comments
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.
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?