Most of the information collected about employees should be kept in a confidential manner. Employers should designate only a few individuals to have access to company personnel files and the files should be kept in a locked cabinet.
There are no federal laws that dictate what must be in a personnel file. The contents of personnel files are likely to vary widely by industry or business. Basic information will probably include:
Medical information of any kind should be kept out of the personnel file. This includes requests for leaves of absence based on underlying medical conditions and notes from physicians listing work restrictions based on health concerns. In most cases, workers’ compensation claim forms should not be kept in personnel files. Benefit claim forms for insurance purposes may also inadvertently disclose medical information that should be kept in a confidential manner, apart from personnel files.
Under the terms of the Americans with Disabilities Act (ADA), medical information may not be used in making employment decisions. Such information should be kept separately from other personnel records.
Employees do have the right to obtain certain medical information. Under the Occupational Safety and Health Act (OSHA), employers are required to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents that are required to be monitored or measured under the OSHA. These regulations provide employees and their representatives with an opportunity to observe the monitoring and measuring of toxic materials and to have access to certain medical records. For a complete discussion see Chapter 33: Safety and health.
The Americans with Disabilities Act (ADA) requires that employers maintain strict confidentiality procedures regarding medical information. Even if information does not directly identify an individual, absence records or other factors may allow identities to be the subject of speculation. Once the information is out, there is no guarantee that the grapevine won’t disseminate it more broadly. This possibility increases with the most sensitive information, such as mental health, HIV or other serious illness. Also, the potential for harm to the individual and to the Company’s trust, in these situations is great. Company procedures must carefully limit disclosures to a strict need-to-know basis.
In contrast to the private sector, state and federal employees do have access to their employment records. Employees of federal agencies can, on request, obtain information about themselves contained in any system of records maintained by a federal agency. In the case of state employees, persons having custody of public records must, at reasonable times, make these records available to anyone wishing to inspect them. Some information or records, however, are exempt according to state statute.
Having a written policy on personnel files allows employees to understand their obligations and also can assist employers in avoiding problems and ensure that supervisors and human resources personnel are consistent when it comes to maintaining the files and allowing or denying employee access to these files.
The policy should state the circumstances under which employees will be allowed to review their personnel file. If employees are allowed to inspect their personnel files, it is important to provide for some type of supervision in order to maintain the integrity of these records.
Personnel files should also be periodically reviewed and updated with new information. Not every record relating to a particular employee belongs in that employee’s personnel file. Some records must be kept separately.
Proper documentation can be invaluable in defending a company’s decisions relating to a particular employee. However, documentation that is poor, incomplete or inaccurate can be worse than none at all. Consequently, documentation should be accurate, concise and factual and employers should keep in mind that any documents created may be discoverable in a later lawsuit.
The inclusion of doctors’ notes excusing absences from work in the personnel file
If the doctor’s note includes medical information, it should be kept in a separate file to preserve confidentiality. If there is a need to document that an absence was excused, a simple notation that “written note provided” will serve the same purpose as a copy of the doctor’s slip.
We are squarely in a digital age. Fewer and fewer records are being stored in paper form. Storing personnel files electronically can be more convenient than storing the files in hard copy form. However, storing these files electronically can present risks that would not otherwise exist. Employers must be careful to avoid accidentally deleting files and failing to keep electronic records for an adequate period. Restricting access and ensuring security for the records is also important and is much more complicated that securing a metal filing cabinet in the human resources department. As with any sensitive information, the employer should use discretion in managing the information.
If a software platform is used, a clear designation of what information constitutes the actual personnel record should be established.