Can my employer ask for my surgeon's notes? 10-14-2009

I am on FMLA leave, and my employer is asking for the operative notes of my surgery. Why do they ask this, and am I required to disclose this information? Is this a violation of my privacy rights?

Ann Kiernan replies:

Under the 2009 revised Family and Medical Leave Act regulations, employers are entitled to ask for detailed information from your doctors to support your claim for FMLA leave. But that does NOT mean that you have to turn over medical records, according to the federal Department of Labor.

The official form of Certification of Health Care Provider for Employee's Serious Health Condition requires your doctor to provide the dates of any hospital admission, and asks: "Describe other relevant medical facts, if any, related to the condition for which the employee seeks leave (such medical facts may include symptoms, diagnosis, or any regimen of continuing treatment such as the use of specialized equipment)." Employers can ask for an updated certification every 30 days in most cases, but no, you don't need to give them your surgery notes.

While your employer does not have to use the official form referenced above, it cannot ask for more information than the form allows. You might want to tell your doctor that you are invoking your federal privacy rights under HIPAA (Health Insurance Portability and Accountability Act) and will not consent to have those surgery records released. Good luck!

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.