Volunteers: Confidentiality, Records
jem626
9 Posts
We use teams of volunteers to provide relief effort in disaster zones. Some of the volunteer are stipend paid and we treat them like employees. Others, however, are strictly volunteers and receive nothing except reimbursment of authorized expenses from a fund they do not control. We recruit, train, assign to teams, evaluate individual and group performance, and maintain files just like employees. They are often assigned out of their home state. What legislation would prevail over their records, dictate confidentiality concerns, record retention, etc? How would HIPAA be affected if we know about their health status or have a health incident occur while on assignment? Anyone else have a similar situation?
Comments
HIPAA doesn't have much to do with you unless you are self-insuring (see http://www.cms.hhs.gov/HIPAAGenInfo/06_AreYouaCoveredEntity.asp). Most employment health privacy concerns that people have stem from ADA (see http://www.usdoj.gov/crt/ada/q%26aeng02.htm covering a variety of issues but see especially about improper inquiries and privacy of records under "What limitations does the ADA impose on medical examinations and inquiries about disability?") and from common sense about avoiding tort liabilities. The typical ADA stipulation is that the results of all medical examinations or information from inquiries about a disability must be kept confidential, and maintained in separate medical files. You may provide medical information required by State workers' compensation laws to the agencies that administer such laws but I doubt they apply to your volunteers. However, that doesn't make the coordinating agency free of liability should a volunteer become injured, so I hope liability coverage is part of your organization's portfolio of risk management practices. ADA mostly has to do with public building accessibility and employment practices but the ADA was enacted to give individuals with disabilities “a chance in life,” so you may want to ensure that persons with disabilities who volunteer are not unnecessarily turned away. Also, just because volunteers are not employees, I wouldn't get in the habit of storing medical information in "volunteer files" just because ADA says you can't store such information in "employee files".
One of the problems you need to be concerned about is whether or not you volunteers are volunteers. Just because you say they are and even if they sign waivers and contracts or letters of understanding doesn't mean that they will be considered volunteers under the law for exactly the same reasons that a person may be a contractor in a working relationship with an organization that also desires a B to B relationship rather than an employment relationship but who then later turns out to be an employee by some third party ruling (subject to minimum wage, overtime, and benefits compensation). There was a case recently where a volunteer either at Centers for Disease Control and Prevention or World Health Organization was denied employment but he won some sort of case that I believe was under a discrimination theory because the volunteer program was a conduit to employment with the organization. I would carefully review the standards for contractor versus employee and the burden placed on coordinating agencies to keep volunteers in the volunteer bucket. These standards will change from circuit to circuit, so it would be a good idea to see if the states in which you operate cross circuit jurisdiction lines (http://www.usdoj.gov/usao/eousa/kidspage/circuit.html). I am concerned about the degree of control and record keeping but, to be honest, I know a whole lot more about employment than I do about coordinating volunteers and I hope someone can help you more directly on that issue.
You don't say if you are a public or private nonprofit entity. Also, are these volunteers mostly retired, students, or are they currently employed by other companies?
These are all factors that would affect the questions you asked.
OK, if you are certain that they are not employees, then laws that apply to the records of employees simply don't hold in any direct fashion. That doesn't mean that someone may not attempt to apply those laws to your situation in a bid to expand the scope of the law but that's not likely unless there's a lot of money on the table for someone to do that.
Your real concern is tort liability. The general rule is to act only in the best interests of the volunteer but I would take specific questions to an attorney.