Is the fact (not the reason for) that an employee took FMLA leave confidential information?

Rita Risser Chai replies:

The FMLA provides that “Records and documents relating to certifications, recertifications or medical histories of employees or employees’ family members, created for purposes of FMLA, shall be maintained as confidential medical records in separate files/records from the usual personnel files.” There are three exceptions, including:

(1) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations;

(2) First aid and safety personnel may be informed (when appropriate) if the employee’s physical or medical condition might require emergency treatment.”

Notice in exception (1) the managers can be informed of work restrictions, which should not require releasing medical information, but in exception (2), medical information may need to be provided.

In any event, the fact that a person is on FMLA leave does not appear to be protected. But why reveal it if it doesn’t have to be revealed? The better practice is to simply say the employee is “out.”


Posted 12-10-2018

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.


About the Author:

Rita M. Risser Chai is the founder of Fair Measures. An attorney in California for 20 years and now an attorney in Hawaii, she authored the Prentice Hall book, Stay Out of Court! The Manager’s Guide to Preventing Employee Lawsuits. She developed most of the curriculum used by Fair Measures, created the firm’s first website praised in HR Magazine, and wrote numerous articles on employment law including one on best practice harassment prevention training published in the magazine of the American Society for Training and Development (now ATD). She taught Law and Human Resources at the University of California, Santa Cruz, for eight years, and has presented four times at the annual conventions of the Hawaii Society of Human Resource Management.