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Ask the Attorney Archives

Medical confidentiality: What does ‘need to know’ really mean?

Q: “I am currently taking training on the ADA and I understand the overall guidance regarding medical confidentiality. What I find confusing is the definition of the ‘employer’ and what HR, managers and supervisors are allowed to know about employees’ medical conditions. Often an employee discloses a condition to their manager directly. And how can the two parties engage in the interactive process without the employee letting the supervisor know what the issue is? I’ve heard the answer to this is, ‘It’s need to know.’ For example, an employee tells their manager they need to start their job later due to ‘problems’ they are having. Can the manager ask what the problems are and if they are medically related, or should they send the employee directly to me?” – Anonymous, New York

The job offer was yanked when the company got cold feet. What are the ramifications?


Q: “A nonexempt administrative assistant in my organization, who has a business admin college degree and 15+ years’ experience, interviewed and was selected for an exempt position. Now HR management is telling her that ‘the jump is too big.’ I assume they mean pay, and are telling her the job cannot be offered to her. The admin is quite upset. Any advice?” – Anonymous, Washington

Who exactly must obey the NLRB?


Q: “Do the decisions of the National Labor Relations Board apply to all employers, or only certain employers when it involves sharing confidential information as a result of an investigation?” – Anonymous, Virginia

When an employee’s workload depends entirely on someone else’s, can we vary pay?


Q: “We are a medical practice and have salaried professionals (CRNAs) on staff. When the physician is not working the CRNA is not working, but is still getting paid because she is a salaried employee. I understand that we cannot decrease her pay, right? If not, are there other options that we have?” – Barbara, Virginia

Are any qualifications necessary to access sensitive employee files and information?

Q: “If someone is hired as an HR consultant but is not certified in any way, do they have the right to access my employee files, salary, etc.?” – Penny, Washington

What to do if a raise was promised, but it didn’t happen?

Q: “Upon occasion I have come across an issue where a manager communicates to an employee in writing that they will receive a specific increase to their base salary, but then the organization is not able to come through. Does the employee have a legal remedy in this scenario, and other than ‘forcing’ the employer to pay whatever amount is owed, are there additional risks the organization faces if they don’t deliver on what was committed to the employee?” – Lara, New York

How much can we ask about an employee’s driving record if their job isn’t to drive?

Q: “Can we require a motor vehicle report and proof of insurance from employees who frequently or occasionally travel in their own vehicles between branches, go to meetings or travel to events after regular work hours?” – Dennis, Ohio

How much about an ongoing investigation can an employee share with colleagues?


Q: “An investigation was conducted involving a charge of sexual harassment, and it was decided the allegations were unsubstantiated. Several days later it was reported that the victim openly discussed the investigation and findings with employees. The victim also stated that the services of an attorney have been secured and the company will be hearing from the attorney. At this point, should human resources meet with the employee regarding what was reported? Is she being disruptive? Should our legal department wait to hear from an attorney?” – Anonymous, Virginia

Money’s missing from the till–what are our discipline options?


Q: “On several occasions at our medical center, when we collect the envelopes in the morning with the cash from the night before, some cash is missing. At the end of the shift, the registrar places the cash in a locked safe. Can we deduct the missing amount from the paycheck of the registrar who was responsible to collect the cash and store it in the locked safe?” – Mendel, New York

Employees coming back to work after FMLA leave: How do we handle these two cases?


Q: “I have questions on two FMLA cases:

1. An executive manager (a ‘key’ employee) had rotator cuff surgery. She is a 24/7-accountable, exempt employee. FMLA leave was offered, it was approved and it required four weeks of continuous leave. The manager returned after two weeks. Her physician released her with minor restrictions. She has been having therapy for the shoulder but did not take time off and has not been offered intermittent FMLA leave. At what point should we turn it into intermittent leave, and does her therapy time count towards this leave?

2. Another executive, but not a ‘key’ employee, broke her wrist and was out three days. FMLA paperwork was sent, but she returned with a doctor’s note to the effect that she was released with some restrictions. She never provided medical certification and she has not missed work except for therapy. Is her FMLA claim denied since she returned after three days and provided no certification paperwork, just the physician’s return-to-work note?” – DEW, Ohio