I hereby authorize my prospective employer to discriminate

April 26, 2006 4:23 PM

How, under Equal Employment Opportunity, can a prospective employer ask you to sign a HIPAA waiver?

(anonymous since the question is about privacy)

I had a job interview today, for a job I really want, in the state of New York. One of the application forms I had to sign was one that authorized them to see my medical records, talk to old doctors, etc. (It also authorized them to do a background check, which I know is all public information anyway, and certified that I wasn't lying on my application, which I wasn't.)

I asked the HR person if it was even legal (or had any actual legal force) for me to sign away this privacy to a prospective employer. She said that if I already worked for them, they couldn't do it, but since I didn't, they could. And that if I didn't sign it, I couldn't talk to her any more. I offered to cross out the part that I didn't like, but she nixed that too.

Ultimately, since I want the job, and since I "have nothing to hide," I signed it. She said that she has never actually done any of the investigation that I just authorized, but that I have to sign it anyway: I expected that they weren't going to do the check, but I don't like signing things that needlessly waive rights that I am given by law.

So, my question is, doesn't HIPAA or EEO prohibit this? Maybe, maybe not:

This HHS page says that:

Health information covered by the rule generally may not be used for purposes not related to health care - such as disclosures to employers to make personnel decisions, or to financial institutions - without explicit authorization from the individual.

I know I just gave them "explicit authorization", but I don't understand how it is legal to use this as the basis for a personnel decision in the first place.

This fluffy pdf says:

In general, your health information cannot be given to your employer, ... or used or shared for many other purposes unless you give your permission by signing an authorization form. This authorization form must tell you who will get your information and what your information will be used for.

The EEOC's Discriminatory Practices page says:

Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with business necessity.

Again, since I signed the waiver, it's not really forbidden by HIPAA. I can't say for sure whether it really told me what the information would be used for, but I suppose even "as part of a background check" may be good enough.

All of my reading has been on the federal level; I don't know if there are New York-specific laws that might apply: do you? Is there anything I'm missing here? My goal is not to take any legal action or anything, just to give them a solid reason to change their form for future applicants. Also, the company is a branch of a British concern, if that makes any difference.

posted by anonymous to Work & Money (8 answers total)

When it comes to things like this, remember the Golden Rule: "He who has the gold, makes the rules."

If you had a couple of million dollars to expend on legal fees, you might be able to challenge this and establish a legal precedent preventing that kind of thing in future for yourself and everyone else. But you aren't going to do that, are you?

Can they do this? They just did. Is it legally permitted for them to do it? The only way to find out is to come up with that couple of million dollars I mentioned and head to the courts.
posted by Steven C. Den Beste at 4:53 PM on April 26, 2006

Please understand that the definition of "disability" is quite limited under United States law. AIDS? Cancer? Smoker? Not disabilities. It is not illegal for an employer to refuse to hire you solely because you have cancer. And clearly this employer intends to find that out before hiring you.

Many people in the United States labor under the misapprehension that there are unspecified "privacy laws" in effect that protect whatever privacy mores the individual feels should be protected. They are wrong in almost all cases. The United States has virtually no laws which protect the privacy of individuals, especially when compared to other first-world nations.
posted by jellicle at 4:55 PM on April 26, 2006

Your prospective employer very likely isn't going to make a 'personnel' decision with that data – instead, they're almost certainly going to use your medical history to see how it will affect their medical insurance premiums.

Group insurance rates are based on the medical histories of the group members. If a group has even one person with a serious condition requiring expensive treatment, the rates for everyone in the group will go up. The company is very likely going to ask their insurance carrier what effect hiring you will have on their rates, especially now that health care costs are becoming such a large percentage of a company's budget.

In the marble halls of government, it's probably illegal under the Americans With Disabilities Act for them to base their decision to hire or not hire you on your medical history. In the real world, this is how those decisions can be made, especially since you handed over your rights and thanked the nice lady for taking them.

If I were you, I would consider this question: if this company is asking you now to waive important rights like this, what do they have in store for you after you're hired?
posted by lambchop1 at 6:24 PM on April 26, 2006

When I arrived at Columbia-Presbyterian to do my medical internship - a commitment I'd made over a year in advance - I was fingerprinted, made to sign such a HIPAA waiver, and also to sign over all rights to any discoveries I made while an internship. I was casually informed that failure to comply would result in "nonemployment."

In retrospect, I should've walked. The short delay in my medical career would've saved me six miserable years at an institution that proved over and over again that it didn't give a crap about any aspect of my training, career, future prospects, or immediate well-being; let alone honoring their contracts.

I'm *still* waiting for my 2003 W-2 form.
posted by ikkyu2 at 6:32 PM on April 26, 2006

Looks like these waivers are recognized by law (check out #4), but they seem to have been prohibited by the ADA for employers over 25 employees.

Wanna get in the Employment Law casebooks?
posted by Brian James at 9:53 PM on April 26, 2006

I'm an employment lawyer. Seek competent legal advice specific to your problem.
posted by Ironmouth at 12:07 AM on April 27, 2006

Ah, a HIPAA waiver can be revoked, in writing, at any time. So once you get the job, you can deny them further access to your medical information. And I don't think they can fire you for it.
posted by bilabial at 5:42 AM on April 27, 2006

Do you really want to work for this employer? If this is what they do to you before signing, what will they do after you are their slave? Walk away!
posted by Ervin at 1:09 PM on April 27, 2006