QUESTION: We employ physicians through an entity affiliated with the hospital. As a part of the employment process, we ask certain medical questions and conduct medical examinations after an offer of employment has been made. This process generates documentation and information on these physicians’ medical conditions. How should we maintain that documentation and information?
ANSWER: With employed physicians, Title I of the Americans with Disabilities Act (“ADA”) comes into play. Under the ADA, any medical information obtained through medical examinations or disability-related inquiries has to be maintained separately and confidentiality. As a part of this requirement, the Equal Employment Opportunity Commission (“EEOC”) has advised that medical information cannot be kept in an employee’s regular personnel file. Specifically, the EEOC instructs:
Medical information must be collected and maintained on separate forms and in separate medical files. An employer should not place any medical-related material in an employee’s non-medical personnel file. If an employer wants to put a document in a personnel file, and that document happens to contain some medical information, the employer must simply remove the medical information from the document before putting it in the personnel file.
Accordingly, any information obtained as a result of medical inquiries or examinations in the employment process must be kept confidentially and separately from routine employment files. We recommend that the same procedure be adopted for the medical staff process and any medical information that is acquired through that process. More and more hospitals are employing physicians and, typically, the employment contracts are conditioned on appointment to the medical staff and grant of clinical privileges. Although there has not been a case commenting on this issue, there is a risk that the courts could apply the confidentiality requirements of Title I of the ADA to the credentialing process under these circumstances. Further, some courts have given the term “employee” under federal discrimination laws, including the ADA, an expansive interpretation to include members of the medical staff that do not have an employment relationship with the hospital because of the amount of “control” (for example, through the peer review process) the hospital exercised over the physician’s practice. Finally, maintaining health information in a separate file helps reinforce the idea that health concerns will be addressed in a confidential and supportive manner. Thus, we recommend maintaining this information separately from routine employment and credentialing files for both employed physicians and those who are solely medical staff members and granted clinical privileges.