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Employers Must Exercise Caution When Responding to Subpoenas

A marshal arrives at your office with a formal looking paper.  You are being subpoenaed to appear at a deposition and provide documents relating to an employee in a state court matter.  The subpoena requests that you provide all documents related to the employee’s employment, including all personnel and medical records.  What are your obligations as a Connecticut employer?

The first consideration is the Connecticut law protecting the confidentiality of personnel files.  This law is applicable to private-sector employers, but not government employers.  Section 31-128f of the Connecticut General statutes provides that personnel files and medical records of employees shall not be disclosed without the employee’s authorization, except in limited circumstances.  One of those circumstances is “pursuant to a lawfully issued administrative summons or judicial order, including a search warrant or subpoena, or in response to a government audit or the investigation or defense of personnel-related complaints against the employer.”  Therefore, the disclosure of personnel and medical records is not barred by this law in this instance.

What about HIPAA?  Many employers believe that HIPAA bars them from disclosing an employee’s health information.  If the employer is not self-insured, HIPAA does not protect medical records in its possession.  (If the employer is itself a health care provider, such as a hospital, and the employee has patient records with the employer, those records are subject to HIPAA.)  So, in most cases, HIPAA does not apply.

Consider next the Americans with Disabilities Act (“ADA”), Family and Medical Leave Act (“FMLA”), and Genetic Information Nondiscrimination Act (“GINA”).  Each of these statutes comes with confidentiality requirements protecting medical/genetic information.  The Equal Employment Opportunity Commission “EEOC” held in a 2011 case that complying with a state court subpoena by providing information that was confidential under the ADA was a violation of that statute.  The ADA provides for limited exceptions to its confidentiality rules and a state court subpoena was not such an exception.  (Incidentally, it appears that even a state court order would not be sufficient.)  GINA and FMLA have similar privacy protections, so the same result can be expected.

Finally, consider non-medical records that could be confidential, such as financial information, Social Security numbers, and teacher evaluations.

An employer who receives a subpoena that raises these issues should consult with counsel about how best to respond.  Often, the best course of action is to contact the attorney who issued the subpoena and request that appropriate authorizations be provided so that the records can be disclosed.  If the attorney insists on all the records and will not provide authorizations, the next step would be for the employer to file a motion to quash the subpoena in court.  Simply ignoring the subpoena is not advisable.

The attorneys in the Labor and Employment Law practice group at Berchem Moses, PC can assist employers with all aspects of the employer-employee relationship, including responding to subpoenas.