HR Management & Compliance

Who Gets Access to FMLA Confidential Medical Records?

There are clear rules for segregating medical records from other personnel records and limiting access. If people are not trained, it’s easy (and expensive) to let records get into the wrong hands.

Medical records related to FMLA leave must be kept in files separate from other personnel and personnel-related records. Medical records must be treated as confidential and made available only on a need-to-know basis. According to the regulations, information on medical records may be shared as follows:

  • Supervisors and/or managers may be informed about necessary restrictions on the work or duties of an employee, as well as about necessary accommodations.
  • First aid and safety personnel may be informed, when appropriate, if the employee’s physical or medical condition might require emergency treatment.
  • Government officials investigating compliance with FMLA or other pertinent law will be provided relevant information on request.

Policy recommendation: It is essential that human resources managers maintain a specific policy or practice on accessing medical records that is intended to protect the confidentiality of these records.

Coordinating Medical Files under FMLA and ADA

According to the Equal Employment Opportunity Commission (EEOC), an employer may keep a single confidential medical file for each employee, separate from the usual personnel file, for storing medical documentation under both the ADA and the FMLA.


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Waiver of Rights

Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA. For example, employees (or their collective bargaining representatives) cannot “trade off” the right to take FMLA leave against some other benefit offered by the employer.

However, this does not prevent the settlement or release of FMLA claims by employees based on past employer conduct without the approval of DOL or a court.

Nor does it prevent an employee’s voluntary and uncoerced acceptance (not as a condition of employment) of a “light-duty” assignment while recovering from a serious health condition. An employee’s acceptance of a light-duty assignment does not constitute a waiver of the employee’s prospective rights, including the right to be restored to the same position the employee held at the time the employee’s FMLA leave commenced or to an equivalent position. The employee’s right to restoration, however, ceases at the end of the applicable 12-month FMLA leave year.

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