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Employee Medical Records

This summer, a new law became effective that prohibits employers from obtaining employees’ medical records in employment discrimination cases where emotional distress damages are claimed. Previously, employers could request employees’ medical records dating as far back as childhood and use the records as a defense or to attack the character of the employee. As a result of not wanting their personal medical history disclosed, many employees decided not to pursue claims against their employers. Because of the new law, employees should be more willing to pursue claims against their employers who have wronged them.

The prohibition on employers obtaining medical records applies so long as the employee’s alleged emotional distress damages are “garden variety,” meaning the claim refers to stress, humiliation, etc. but is not linked to medical care. There are three exceptions to the prohibition on obtaining medical records: (1) if the employee relies on the records in court or has a provider or expert testify as to treatment for purposes of proving the emotional distress and resultant damages, (2) if the employee suffers from a diagnosable physical or psychological injury that he or she is seeking damages for in the lawsuit, or (3) if the employee claims that the employer is failing to accommodate a disability or has claimed disability discrimination. Even with these exceptions, employers may typically only obtain the previous two years of the employee’s medical records.

With the passage of the new law, employees should feel more comfortable in bringing their legal claims against employers. Additionally, employers will not be able to threaten obtaining medical records as a way to strong-arm employees into releasing or foregoing their valid legal claims.

If you have been discriminated against in your employment, we encourage you to give us a call for a free evaluation of your claim. We offer many levels of representation including one-on-one appointments for general advice, and representation on a flat fee, hourly, or contingency fee basis.

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