EHPs defend confidentiality of employees’ medical records
Occupational health nurses seek federal law to resolve ethical dilemma
When Kathleen Easterson, RN, BS, MPA, COHN-S, was fired from her job as occupational health manager at Long Island Jewish Medical Center in New Hyde Park, NY, it was not because she failed to perform her job duties. Instead, she refused to turn over an employee’s medical records to a hospital administrator who apparently was seeking a reason to terminate that worker.
With increasing regularity, occupational health practitioners in hospitals and other industries are finding themselves caught in an ethical dilemma as they straddle the line between safeguarding the confidentiality of their employee/patient medical records and being responsive to their employers. Complicating the issue is the fact that only a handful of states have enacted laws protecting employee medical records from employer scrutiny, leaving practitioners without legal backup if they refuse demands for privileged information from employee health records.
At present, federal statutes guarantee confidentiality of medical information only in regard to the Americans With Disabilities Act,1 but that could change if the American Association of Occupational Health Nurses (AAOHN) prevails in the all-out lobbying effort the Atlanta-based organization recently launched in Washington, DC. More than 200 members will visit the nation’s capital to drum up support for legislation designed to protect employees’ personal medical data from unauthorized disclosure to employers.
The nurses plan to ask for amendments to the Medical Records Confidentiality Act (S1360), one of several similar bills recently proposed relating to protecting the privacy of medical information. Introduced last year by Sen. Bob Bennett (R-UT), the legislation remains in committee until next year, says Bennett spokeswoman Mary Jane Collipriest.
"No federal law exists right now that protects the confidentiality of medical records," Collipriest says. "There are laws that protect the privacy of the videos you rent, but there is no federal law that protects this substantive information. The state laws that do exist are very different; it’s a patchwork, essentially. With this legislation, employers won’t have open access to medical records. The people who access medical records will have to be accountable and authorized to do so."
The Bennett bill and others were designed to ensure protections for all American citizens, but Kae Livsey, AAOHN governmental affairs manager, says chapter leaders from around the country will converge on Washington to ensure that proposed legislation extends protections to worksites.
"We have identified this as the number one issue for our membership right now," she says. The legislation is "a start that’s badly needed, and we want it to be tweaked and refined to make sure that workplace situations are written into it."
Occupational health nurses are in a difficult position, Livsey notes, "in that they are working as an agent of the employer in doing health surveillance, injury prevention, and also treatment of work injuries. In the course of their work, many times employees come to them and divulge very personal information which in many cases is not work-related, and the nurse has an ethical obligation to maintain the confidentiality of that information. What we have found is there really are no legal protections in those situations. Nurses are behind the eight ball, stuck in the middle, caught between a legal and an ethical dilemma."
Each state has its own Nurse Practice Act, and although they may differ, the requirement that nurses maintain their patients’ confidentiality is standard. Nurses could lose their professional licensure if they violate that rule. In addition, some states have laws relating to medical records privacy, but most of those do not go far enough, Livsey states.
"Most deal with traditional medical settings, and we found the further away you get from that traditional medical setting, the more likely it is that worksite situations are not addressed in any law they have," she says.
The AAOHN is not "anti-employer," she emphasizes, "but employers need to know it behooves them to maintain confidentiality. The effectiveness of any health program they have will be diluted if employees don’t think they can disclose, so it’s in their best interests to protect employees’ medical information. Employers are not all bad guys, but some are inappropriately looking for information to use in making hiring and firing decisions and taking other personnel actions."
Livsey says she receives at least five calls a week from members who report being in a "sticky situation" because their human resources manager or another supervisor wants to see an employee’s medical records.
"We recommend that organizations do have some sort of policy in place about how medical information will be handled at that workplace, but it doesn’t have any legal weight above the fact that it’s company policy," she notes.
That was the case with Easterson.2 In 1986, as assistant director of nursing for occupational and environmental health at a 5,000-employee medical center, she had worked there for four years when the institution’s associate divisional administrator asked her to turn over a physician’s note in an employee’s medical file. The employee had been absent from work for a week, and hospital policy required a doctor’s note for an excused absence after three days. The note stated the private physician’s diagnosis (severe headache and temporomandibular joint trauma). In addition, the returning employee had been examined by the employee health physician, who determined she was able to resume her duties without any detriment to the institution, its patients, or other employees. Those were the criteria for an employee to return to work, Easterson says.
The employee had a history of absences, so "I’m sure the idea was they were seeking to terminate her from the institution, and rather than doing it on job performance, they were looking for another way," she recalls.
Easterson had instituted the hospital’s employee medical records confidentiality policy, which required an employee’s written consent before information could be released. It had been signed off by the hospital’s chain of command from the president down.
When the employee refused to consent, "I told the administrator that because of this, I could not produce the [doctor’s] note, and I reiterated that the employee had been cleared medically and was capable of working, which was all [administrators] really needed to know," Easterson says. "She didn’t care about the policy. She wanted the note, and if I didn’t produce it, I would be terminated for insubordination, which consequently I was."
Despite Easterson’s impressive career, which began in 1948 she started a hospital-based community occupational health service at her institution and was president of the New York State Association of Occupational Health Nurses the native New Yorker could not get another job in her own state as a result of being fired for insubordination.
Why take a career-threatening stand? "As president of the state association, certainly if I didn’t set the moral values for the rest of the profession, who was going to? There was no way I couldn’t do what was right," Easterson tells Hospital Employee Health. "Doing what is right can be very difficult, but we have to remember the ethics we all were taught because ethical dilemmas come up all the time."
After she was fired, Easterson sought legal representation for wrongful discharge and reinstatement, but found that was no easy task, either. She turned to a City University of New York Law School legal services clinic run by law students under the supervision of an associate law professor. Despite their best efforts over a period of four years and appeals all the way to the New York Supreme Court, her case never went to trial.
Now semiretired and living in the north woods of Wisconsin, Easterson is concerned about other employee health practitioners who find themselves in the "gray area" between supporting employee/patient rights and maintaining responsibility to the institution. "A lot of things could go unchecked within a hospital if employees feel their medical records are open to anyone who wants to see them," she says. "It could cause a major public health problem within an institution."
Easterson notes that after her termination, the employee whose doctor’s note precipitated the dispute was informed by her unit supervisor that he had obtained her entire medical record without her knowledge and could do so again whenever he wanted.
Hospital Employee Health contacted Long Island Jewish Medical Center for a response, but officials there declined to comment. A spokesperson says commenting on matters that have been litigated is against their policy.
Vanessa Merton, JD, was the associate law professor who helped represent Easterson 10 years ago. Now associate dean for clinical education and professor of law at Pace University School of Law in White Plains, NY, Merton says Easterson’s case was not heard in court because of inadequate state and federal employment laws, not because she was in the wrong.
"New York state has some of the most Neanderthal employment law in the country, which is really saying something because we are the only large industrial nation that doesn’t provide any kind of job security for non-unionized employees, and we are the only one that doesn’t have a just cause’ requirement for firing people," Merton states. "The law has evolved differently in each state in terms of very limited protections, and New York has always been a very backward state in this area."
Easterson had numerous briefs from the AAOHN, the American College of Occupational and Environmental Medicine, the American Public Health Association, and the New York Occupational Medical Association, "and the other side had nothing. We had all the expert opinion on our side, and there was no expert opinion on the other side," yet there were no state laws to support her case, says Merton, who points out that Easterson could have lost her license if she had violated patient confidentiality, according to the state’s Nurse Practice Act.
"Anyone who is responsible for employee health has to be protected from facing the absolute devastation of losing their job for doing exactly what they’re required to do, which is to protect the confidentiality of people who are trusting you to provide their medical care. It’s difficult to be put in a position where the state says you must do this or risk losing your license. But if you do it and get fired, we offer you no protection. That’s what the law is right now in many states," she says.
Federal standards and federal enforcement are needed to establish protections and consistency in employment law, but a federal law safeguarding privacy of medical records would not be a panacea, she adds.
"It takes much more professional responsibility on the part of administrators of health care institutions and other employers, but at least if there were a law, maybe, just possibly, some of these employers would be a little deterred, would be a little less likely to pull something like this," Merton says.
The force of a federal law also might help other occupational health providers who might find themselves in a situation similar to Easterson’s.
"No private lawyer would have taken [her] case," Merton says. "We tried to sell her case to some lawyers and they all said the same thing it would cost them $200,000 or $300,000 in time to try to litigate this case, and at the end they have no way of knowing how the courts will interpret it. A lawyer can’t afford to go on for years to resolve a case without being paid anything. Most people in the kind of situation that [Easterson] was in can’t get any kind of legal representation, and even if they could, they’re always told, If you sue, you’re going to get such a bad rep that you’ll never work again in this business.’"
Enduring the litigation process is difficult. Merton says she tells prospective clients that the ordeal will "ruin their life for the next five to 10 years" with no great likelihood of success. In Easterson’s case, her professionalism was attacked; every detail of her life was probed.
Most such termination cases are never pursued legally because "when people are fired, most don’t have any money to spend on lawyers. That’s why 99.99% of the time these cases are never brought. You have to really be a hero, like [Easterson], really tenacious and really committed to the principle involved. The medical center had infinite lawyers," Merton says. "Who did she have? A bunch of law students, for crying out loud. It was never a fair fight to begin with, and that’s usually the situation."
Until enactment of a federal law, "you will not be able to provide decent employee health care, and employees will not tell the truth to their health care providers with very detrimental consequences for their health and others’ health, particularly in hospitals where you don’t want sick employees wandering around. A hospital is about the last place you need sick, contagious employees who are too scared to go to the employee health service because they know the information will be transmitted directly to their line managers," Merton states.
Mary Jane Willke, RN, COHN-S, employee health manager at Children’s Hospital Medical Center in Cincinnati, wrote a confidentiality of employee health records policy about a year and a half ago. (See policy, inserted in this issue.) Willke says she modified the hospital’s patient medical records policy to create the document. Since that time, only one incident tested its parameters.
A physician who was head of another department was "adamant that she have free access to our files because of her position in the hospital," says Willke. The physician was seeking research information on the general employee population related to an immunization.
"She only wanted to see that particular information, but she wanted to do it on her own whenever she wanted to without any restriction from [EHPs]," Willke notes. "We did not object to giving her the information she wanted. It was the manner in which she wanted to get it."
Willke says both the employee health physician and the top hospital administrator backed up her objection to the department head’s demand because it violated the institution’s policy of confidentiality for employee health medical records. The information needed for the research project was provided in another manner that did not involve opening private files.
Kathleen VanDoren, RN, BSN, COHN-S, executive president of the Association of Occupational Health Professionals in Healthcare, which is based in Reston, VA, says EHPs realize "it is part of their personal and professional ethics not to hand over an employee’s medical records file."
Nevertheless, Merton warns that an institution’s confidentiality policy is not viewed as a contract in most states. In Easterson’s legal case, the policy was placed in evidence but was not viewed as binding.
"Occupational health managers who think they are protected by their hospital’s policy of confidentiality could be rudely awakened, " she says. "It depends on state law whether any legal binding force is given to any of these manuals, but generally the rule has been no."
References
1. Smith JF. Occupational medical records: An intricate confidentiality issue. AAOHN J 1994; 42:18-22.
2. Easterson v. Long Island Jewish Medical Center, Supreme Court of the State of NY, Appellate Div; Sec. Dept., Index No. 016738/87. Also Easterson v. Long Island Jewish Medical Center, 549 NYS 24 135.
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content