Keeping track of the documentation that should be included in an employee's personnel file vs. her medical file, and determining who should have access to those files, is a compliance issue for human resources department staff. The HR department maintains employment information for its own access, as well as documentation for employees' and supervisors' access. But it's imperative that HR staff are knowledgeable about what types of documentation belong in which file and who has access to those files.
Whether electronic or hard copy, organizing an employee's personnel file begins with her application materials. One of the initial file materials is her employment application, a legal document the employee signs that affirms her identity, contact information, work history, education and, in many cases, agreement to at-will employment status, and the truthfulness of statements she makes during the selection process. In addition, her cover letter and resume should become part of the personnel file, along with copies of letters of recommendations. The HR staff is responsible for maintaining confidentiality of employee information, and although an employee's applications materials are part of a confidential personnel file, they may not require the strict confidentiality that medical records require.
Employers document personnel actions, such as information related to salaries, hourly wages and working hours, commendations, feedback from supervisors and disciplinary reviews. Performance appraisals, transfers, promotions and job changes also are documented in an employee's personnel file as part of her employment history. Any medical information about the employee should be maintained in a separate file and not commingled with documentation concerning personnel actions or employee performance. In organizations with electronic personnel files, it's often helpful to enable supervisor and manager access to personnel actions and prohibit their access to medical information.
Many organizations maintain two versions of personnel action files -- an official personnel file that the HR department maintains and another file, often referred to as the departmental file. The purpose of a departmental file is two-fold: it enables quick access for department supervisors to review employment documents, and because of the easy access, it may encourage more diligent record-keeping by department leaders. Naturally, only the departmental manager or supervisor should have access to this file and HR should monitor how they document personnel actions to ensure official and department files are identical and consistently updated. Departmental files shouldn't contain any medical information about employees.
Employee medical information must be maintained with strict confidentiality, and if your company administers a group health plan, you may be subject to regulations as a covered entity under the Health Insurance Portability and Accountability Act, or HIPAA. But if you're a self-insured employer, there are federal mandates to which you must comply, such as appointing a privacy officer who maintains employee medical information and informing employees of their entitlement to privacy concerning medical information. Examples of medical information include physician certification under the Family and Medical Leave Act, doctors' notes that employees may be required to submit when they take sick leave, or records concerning an employee's impairment that requires accommodation under the Americans with Disabilities Act.
Documentation related to workplace investigations, such as employee complaints, witnesses' statements, communication between the employer and its legal counsel and strategic plans concerning resolving workplace disputes should never be included with an employee's personnel file. Labor and employment lawyers, such as those who practice with the Los Angeles-based firm Kirkpatrick & Lockhart Preston Gates Ellis, provide training to employers on the importance of maintaining workplace investigation file materials separate from personnel files. Access should be limited to the company's employee relations specialist or the HR manager.
- U.S. Equal Employment Opportunity Commission: ADA & GINA: Confidentiality Requirements
- Privacy Rights Clearinghouse: Your Health Records and Your Employer
- Nolo: Keeping Personnel Files and Medical Records Confidential
- Kirkpatrick & Lockhart Preston Gates Ellis: Conducting Effective Workplace Investigations: Legal Requirements and Practical Considerations
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