When you find out an employee has cancer, one of your first concerns must be the employee's privacy. Federal law requires it.
The Legal Basis for Workers' Privacy and Protection
Protection for cancer patients who choose to disclose their condition is provided by federal laws such as the Americans with Disabilities Act (ADA), which applies to workplaces with 15 or more employees. In addition, a person's medical privacy has been strengthened since the Health Insurance Portability and Accountability Act of 1996 (HIPAA) became fully effective April 14, 2003. These new rules guard the distribution of personal health information and impose penalties on doctors, hospitals, health plans and pharmacies for breaching that privacy.
Employers must be aware of the ADA provisions, which stipulate, among other things, that they may ask only job-related medical questions, insuring a cancer patient's privacy is maintained.
Another law, the Family and Medical Leave Act (FMLA) requires employers who are covered (those with 50 or more employers, public agencies, schools) to grant medical leave when necessary.
To brush up on all three laws:
The HIPAA rule does not affect employers as employers, per se. Rather, HIPPA regulates what the government called "covered entities." So HIPAA covers health care providers such as physicians, healthcare clearing houses such as billing companies and health plans. The health plan is the covered entity, not the employer. But even so, a company must make sure its health plan meets the stipulations of the HIPAA rule.
For a discussion on who qualifies as a covered entity, see http://www.cms.hhs.gov/hipaa/hipaa2/support/tools/decisionsupport/default.asp. For detailed information on HIPAA, see http://www.hhs.gov/ocr/hipaa and click on "Your Frequently Asked Questions on Privacy."
In general, HIPAA requires the average health care provider or health plan to notify patients about their privacy rights and how their information can be used. It also requires adoption of privacy procedures and that employees be trained to understand them. Patient records must be secured so they are not readily available to those who do not need them.
A privacy official, someone in human resources or benefits, is in charge of seeing that HIPAA.
An often asked question is whether all oral communications must be documented. That question is covered in the Frequently Asked Questions. While there are no requirements of documentation for treatment, payment or health care operations, there are some other documentation requirements, spelled out on the government website.
Besides becoming familiar with ADA, FMLA and HIPAA, it's also a good idea to seek out up-to-date legal information about a cancer patient's right to privacy from other sources, such as the The Cancer Legal Resource Center (CLRC), a joint program of the Disability Rights Legal Center and Loyola Law School.
Discovering and Respecting Your Worker's Privacy Wishes
Once armed with legal information, you can gently find out how much privacy your worker wants.
The reaction of a worker with cancer varies dramatically. The desire for privacy can be pervasive or nonexistent. In one case, a woman told no one of her cancer diagnosis. But it became obvious when she began wearing a wig. Finally, the woman opened up and shared the news with workers she felt comfortable sharing with.
In another case, a woman who worked as a senior vice president in a large hospital wore her radiation therapy as a badge of honor. She told everyone about her cancer. If she didn't feel well, she'd take a nap on a cot she had brought in to her office.
Most of your workers will probably fall somewhere between these two extremes. Don't try to guess which way your employee will react. The worker who is outgoing and typically tells you the personal details of her life--more information than you want, sometimes—may just turn out to be the cancer patient who clams up and doesn't want anyone to know specifics.
Factors that play a role
Of course, other factors play a role in how much privacy a worker may want and need, such as the severity of the diagnosis, the stage of the cancer, how much treatment is needed, along with expected absences from work.
Whether an employee decides to disclose a cancer diagnosis—and how much other detail to share—hinges on business and personal factors, such as how long she has been with the company, their personality, how severe the cancer is and other factors. If they fear others will blame their cancer on their behaviors, such as smoking, a worker will understandably be less likely to share.
Guarding privacy when you first hear the news of your worker's cancer is a wise first step. It speaks volumes about your respect for the worker and, just as importantly, can pave the way for a successful outcome, experts say.