Confidentiality Provisions of HIPAA versus the confidentiality provisions of the FMLA

maverick

I am an EEO officer in a public agency. I am in the process of responding to a charge of discrimination from a state agency on behalf of a former employee. The former employee is alleging discrimination based on a disability which is tied to the FMLA leave which was granted to the employee. In order to respond factually to the charge, I need to see the FMLA Certification of Health Care Provider and the Employer's Response to Employee. The HR Director refuses to discloses this information to me on the basis that HIPAA does not allow him to do so. In essence he is saying that the confidentiality provisions of HIPAA override the confidentiality provisions of FMLA medical records that allow the records to be reviewed in the case of an investigation. I disagree with his position. Question: Do the confidentiality provisions of HIPAA override the confidentiality provisions of the FMLA and ADA?
I would appreciate your views or opinions and any legal citations for your response.

Geno

maverick,

An employEE’s health information (as defined by 29 CFR 825.306 -- FMLA) that might otherwise be considered PHI (Protected Health Information as defined by 45 CFR Parts 160 and 164 -- HIPPA), when held by the employER, in its capacity as an employER is not subject to HIPPA regulations.

EmployERs traffic in and hold, on a daily basis, health information for employment-related purposes, such as administering sick leave and complying with laws such as the Family Medical Leave Act, the Americans With Disabilities Act, worker’s compensation and federal and state health and safety regulations. According to the final HIPPA regulations, this type of information, when held by the employER, in its capacity as an employER, is not PHI, and therefore not subject to the regulations.

Geno

Irie

I agree with Geno. Information shared in the course of employment is not considered PHI and therefore does not fall under HIPAA.