Is it really illegal???


We recently became subject to FMLA and are still wrestling with implementation and specifics. Here's my sitatuion/question:

I realize that obviously the nature of and specific information about an employee's FMLA leave is confidential because it involves medical, family-status and potentially other protected class information. However, is the mere fact that the employee is on FMLA leave (without knowing the reason) legally protected information? If it is, could someone please provide me with the CFR reference to back that up?



  • 5 Comments sorted by Votes Date Added
  • Don't know if this answers your question or not, but yes, FMLA status should remain confidential except to those who need that information (such as, the employee's supervisor). I believe FMLA status is considered PHI under HIPAA, therefore you need to safeguard that information, and keep it separate from employee files.
  • I don't know that the statute specifically states that you cannot tell others that someone is on FMLA leave, but it seems common sense to me. Consider this scenario: you tell employee B that employee A is on FMLA leave. Employee A is dealing with an illness they wish to keep completely private, but when they come back employee B pesters them to find out what is wrong. Employee A might have a case that you violated their privacy rights. Why risk it?

    It seems more practical to me to just say the employee is on leave. That is our standard notice, regardless of the reason why an employee is out. If someone pushes for more information, I remind them that it is against policy to share that information and that I will behave the same should they be out for any reason. If they push because they think the employee has been absent too much, I simply tell them that the employee is following our policies and procedures.

    Having said all that, this is a very small company with a caring atmosphere. Occassionally an employee on leave will tell me it is ok to share and I go ahead and tell the other employees, making sure they understand that the employee told me to tell them.

    Good luck!

  • Thanks for your response - I really appreciate it! We're also a small, caring company and more often have an issue with employees themselves sharing info than HR/management "leaking" things.

    I have no intention of telling employees that another employee is on FMLA leave. Our HR Specialist (who reports to me) was concerned about whether or not the Receptionist (who does all of our FedEx processing) can create a label to mail employee, FMLA-paperwork paperwork because, eventually she may deduce/assume that the labels always go to employees who are on FMLA Leave. While that's possible, I'm not sure that its a relevant or weighty enough concern. (We'll just do the FedEx prep ourselves.) This is the only example I can think of right now, but there have been similar, minor things that have come up where an assumption is being made that mere knowledge that an employee's absence is FMLA-related is illegal (even when the employee doesn't know the reason or the details behind the reason).

    I agree that it is common sense that you wouldn't intentionally reveal or broadcast that an employee's absence is FMLA-related. But my underlying question is, is it illegal? Unfortunately, practicality and legality tend to be two separate things in America today. (Where's my soapbox???)
  • Thanks for your reply! We are actually not subject to HIPAA, so 1) that doesn't apply to us and 2) I couldn't tell you whether or not FMLA status is considered PHI.
  • First of all, FMLA status is NOT considered PHI under HIPAA. Second, while you want to keep the reason someone is off work confidential, simply stating that someone is on FMLA leave is NOT violating any privacy issues. With that in mind, my practice is to NOT answer questions from other employees about an employee's absence. When I have an EE off work on FMLA leave, I tell the supervisor that the EE is off on FMLA leave and the approximate duration of the leave (if I know it). Other than that, there is no information shared.
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