Consumer's Digest Article Part 2 of 2

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Workers’ compensation records in particular have become part of a 
comprehensive pre-employment screening process. Although not every state will 
readily release this information, employment-screening firms can obtain these 
records fairly easily. Under the Americans with Disabilities Act, employers 
are not allowed to check your medical history prior to making an employment 
offer. But once the job offer is made—and you sign a disclosure giving a 
company the authority to check your medical history accompanied by your 
Social Security number—employers can see if you’ve filed any workers’ 
compensation claims or paid any bills relating to medical care out of pocket 
(through credit billing records). While most employers say they strictly 
follow the Disabilities Act, screening future employees who might file large 
insurance claims is a integral part of doing business since most self-insured 
health plans want to avoid any large "losses" that the company might pay 
directly.

Tracking down an employee’s medical past is becoming a new kind of 
blacklisting, especially if you’ve had a serious injury or chronic illness. 
Guy Fowler, a representative of Documented Reference Check, a Diamond Bar, 
Calif.-based firm that checks employer references for employees, says that 
"the new kiss of death [for employees] is filing a workers’ comp claim. All 
the employer needs is a date of injury and Social Security number, and [he or 
she] can access the records without the employee ever knowing it. Employers 
will not touch employees who filed a claim."

Jim Ellenberger, the assistant director of Occupational Health and Safety for 
the AFL/CIO, suggests that pooling of medical information by employers and 
insurers "is used to blacklist and gyp people out of benefits. There’s been 
this kind of discrimination against workers for years. The vast majority of 
employees won’t take action against their employers or don’t even know 
they’ve been discriminated against."

Lawyers who represent workers in compensation claims or suits concur with 
Ellenberger. We talked with several attorneys who are involved in such suits. 
Everyone said that medical information was readily obtained by personnel 
departments from insurers, through written authorizations, in court 
proceedings (known as "discovery") or simply by making a phone call to a 
worker’s health-care provider. "We see little evidence that medical privacy 
exists at all today," notes Charles Hassell, Jr., an employment lawyer in 
Raleigh, N.C. "Employers or insurance carriers can obtain anything they want 
about anybody by simply asking for it."

Lew Maltby, of the New Jersey chapter of the American Civil Liberties Union 
(ACLU), faults the Disabilities Act, since it permits widespread release of 
medical information. "The ADA has a hole in it you can drive a truck 
through," Maltby says. "We don’t think your employer should see your medical 
history unless it’s related to your job, but thousands of employers look at 
it."

Responds Adelle Rapport, managing attorney of the EEOC in Detroit, most 
problems relating to the Disabilities Act occur when an employer conducts 
tests or screening after a job offer is made. For example, one premise for an 
EEOC suit in recent years has been refusing to hire workers after requiring 
medical tests. Moreover, the practice of sending workers to doctors hired by 
employers, also euphemistically known as "independent medical examiners," 
frequently produces medical opinions in the favor of the employer. 

"A pattern we’ve seen is that employers send candidates to doctors who make 
opinions in areas in which they don’t have any expertise," Rapport has found. 
Worse yet, employees who try to fight this system are further ostracized and 
face an incredible battle to win benefits if they are employed. That’s what 
happened to Feliberty at Kemper Insurance companies. 

Once the employee starts questioning the independent medical exam, the 
resulting insurance-company probe and the employer’s decision not to rehire 
or fire, a fierce court battle ensues over medical records. The results of 
this pitched battle against privacy are humiliating and demoralizing to 
people who simply want to work and want valid health coverage. 

The Kafkaesque agony that many employees endure in trying to prevent their 
medical histories from destroying their livelihoods is pushing many people 
into despair. "Jane Smith" (we have changed her name at her request) is 
currently suing her employer, a major insurer in New York state. She was 
disabled with a neuromuscular condition after falling on a floor of her 
employer’s office building that was under construction. Once she tried to 
collect insurance benefits from her employer, she was subjected to extensive 
harassment, including a private investigator hired to probe her home (while 
it was being shown by a real-estate agent) to find signs that she was faking 
her injury.

Gus Papay Jr., a former New York City police detective (now based in Chester, 
N.Y.) who was hired by Smith to see who was spying on her, traced the 
investigators to her employer. Smith is appalled that her employer turned 
against her and is also pressing a claim through the EEOC.

Because your medical records are not completely confidential, employees lack 
true protection. Unfortunately, with increasing employer momentum to cut 
growing costs, easily accessed medical records will only become more of a 
tool to push disabled and chronically ill workers out the door.

What Can Be Done. Insurers, employers, researchers and government agencies 
need access to medical information for a variety of valid reasons. 
Health-care costs are still soaring, and employers have a need to rein in 
costs whenever they can. There needs to be a limit, however, to who sees 
medical information and how they can use it. 

Any future legislation should provide some sort of "firewall" that bars 
employers and insurers from discriminating based on medical history. Although 
the Disabilities Act is clearly the best law on the books in this regard, it 
needs to be strengthened along with EEOC enforcement, which is paltry at 
best. Unfortunately, every attempt at legislating solid, pro-consumer privacy 
bills in Congress has been shot down by employer-backed interests, insurance 
and information marketing groups. 

Holzer, with the Council for Disability Rights, suggests that true protection 
of medical records from employer/insurer misuse will not occur unless health 
insurance is removed from the employer’s domain. Another obstacle to reform 
on employment and medical rights is a law called the Employment Retirement 
and Security Act of 1974. Under this complex set of laws, employees don’t 
have the right to sue their employers over benefit disputes if the employers 
are self-insured. Although this law is constantly challenged in court—and was 
addressed in a defeated "Patient Bill of Rights" last year—employees will 
still be virtually powerless while this provision is in place. 

Ultimately, though, there will be no real medical privacy until medical 
records are regarded as private, closely guarded information. Unfortunately, 
the federal Department of Health and Human Services has a plan to institute a 
"unique health identifier" number by the end of the year that will link all 
of your health records to one, universal number (like the Social Security 
number). If that happens, privacy advocates contend that it will be open 
season on private medical records—and perhaps employment itself.

John F. Wasik is Special Projects Editor of Consumers Digest. Carey 
Millsap-Spears, a Consumers Digest assistant editor, provided research 
assistance.

Employers and Medical Privacy: 
An Open Book?

• A University of Illinois study by Professor David Linowes, a national 
privacy expert, found that 35 percent of the nation’s largest corporations 
"use medical records in making employment decisions." Many privacy experts 
believe the overall use of medical records by companies is much higher.

• The National Association of Insurance Commissioners (NAIC), in drafting 
model regulations for state insurance commissions on medical-record privacy, 
heard testimony that insurers were exchanging medical information with 
employers.

• A Harvard/Stanford University study documented some 200 cases of 
discrimination based on genetic predisposition for disease (the chance that 
one’s genes could produce a debilitating or fatal disease). These people were 
denied jobs, insurance, adoption rights, educational opportunities or 
acceptance into the armed forces. 

• The health-care industry spent as much as $15 billion in 1996 alone to 
invest in information technology that would process and store medical 
information on Americans, according to the Senate Committee on Human 
Resources. 

 

What Employers Can Find Out About Your Medical Records

There is a relationship between workers who are injured, disabled or who 
become chronically ill and employers who fire them, although no reliable 
national statistics are available. 

• One study indicates that 21 percent of workers were fired or laid off after 
their work-related injury, according to the Texas Research and Oversight 
Council on Workers’ Compensation.

• According to the AFL/CIO, "employers commonly use information about an 
individual’s medical condition in [making] decisions about hiring, firing or 
promotions."

• Medical information is available from insurers through state workers’ 
compensation programs and industry databases on insurance claims known as the 
"Index" system.

• Workers’ compensation claim information is easily bought from 
employment-screening firms for as little as $12. 

• Employers can pull even more medical information from credit records 
(health-care billing), bankruptcy records and even handwriting analysis (some 
medical and mental states).

WHAT YOU CAN DO NOW TO PROTECT YOUR MEDICAL PRIVACY

• Ask for a copy of your medical records from your physician, hospital and 
other care providers. Correct any misinformation. Ask your doctor how much 
information is released to third parties, what privacy policies they have in 
place and what they do in practice, as opposed to their policies.

• If you are concerned about privacy during a hospital stay, find out who has 
access to your treatment and records. If your concern is extreme, ask to see 
"access logs" of computer medical-records systems.

• If possible, restrict the amount of medical information released to 
employers or insurers. Instead of signing blanket authorizations regarding 
"any medical provider to release any medical information," negotiate to 
restrict the authorization to a specific provider or hospital.

• If you are concerned about your personal information being sold, don’t fill 
out medical questionnaires accompanying surveys or drug promotions or 
toll-free information hotlines. Your name may be sold to companies marketing 
products that apply to your particular maladies.

• Request a copy of your MIB report. Call 617/426-3660 or 416/597-0590 in 
Canada. The reports cost $8 each.

• Ask your employer if it is self-insured and obtain a copy of all policies 
relating to medical information. Are medical records stored in personnel 
files (that’s illegal under federal law). Does your insurer or 
health-maintenance plan share information with your employer? If so, who sees 
it and how is it used?

• Do not give out your Social Security number unless you have to. This number 
can be used to track a great deal of information on you, including workers’ 
compensation records and credit files. Never provide health information over 
the phone and make sure your health-care providers won’t release your medical 
records without your written authorization.

• Call or write your congressman or congresswoman and tell him/her you want a 
comprehensive medical privacy law that does not include a universal "health 
identification number" and restricts medical information only to health-care 
providers and insurers.

Resources 

For a comprehensive list of resources, consult our Web site at www.consumers 
digest.com. 

• Equal Opportunity Employment Commission, 800/669-4000; www.eeoc.gov, the 
principal government agency responsible for policing employment 
discrimination.

• National Coalition for Patient Rights, 888/447-7482; www.nationalcpr.org. A 
group active in medical-privacy issues.

• National Employment Lawyers Association, 415/227-4655; www.nela.org, 600 
Harrison St., Suite 535, San Francisco, CA 94107. A group that represents 
attorneys who specialize in employment issues.

• Privacy Rights Clearinghouse, 619/298-3396; www.privacyrights.org, 1717 
Kettner Blvd., Suite 105, San Diego, CA 92110. A key organization on all 
privacy issues. Also see its Privacy Rights Handbook: How to Take Control of 
Your Personal Information, by Beth Givens (Avon, New York, 1997; $12.50). 


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